Ontario Introduces Gig Worker Rights, Electronic Monitoring Policies (and More)

In the lead-up to the June 2nd provincial election, the Progressive Conservative Party under Premier Ford has introduced yet another set of changes to Ontario employment law. This marks the second major update to the province’s workplace regulations in a 12-month period. We reported on the prior round of changes (which became law in November 2021) here.

The provincial government presented its newest rules via Bill 88, the Working for Workers Act, 2022. Bill 88 received royal assent and became law on April 11, 2022. It is somewhat a spiritual successor to the similarly named Working for Workers Act, 2021, which banned most non-competition agreements for Ontario employees and required employers to introduce disconnecting from work policies.

The 2022 version of the Working for Workers Act contains its own host of updates to Ontario employment law. In this article, we review four of the most interesting aspects of the new legislation:

1)     Written Policy on Electronic Monitoring

Effective October 11, 2022, employers with 25 or more employees will be required to have a written policy on electronic monitoring in the workplace. This policy must detail:

• whether the employer electronically monitors its workers;

• how and in what circumstances electronic monitoring will occur; and

• the purpose(s) for which information obtained through electronic monitoring may be used.

Employers are also required to record the date their policy was prepared and track subsequent amendments.

It should be noted that Bill 88 does not impose any restrictions on an employer’s right to electronically monitor its staff. That said, employers should strive to respect employee privacy wherever possible. Failure to do so may result in unintended liability, such as through privacy tort claims (e.g. intrusion upon seclusion) or staff grievances (in unionized workplaces).

2)     New Definition of IT and Business Consultants

The Employment Standards Act, 2000 (the “ESA”) has been amended to exclude protections for IT and Business Consultants. Bill 88 defines the two roles as follows:

• IT Consultant – “an individual who provides advice or services to a business or organization in respect of its information technology systems, including advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business or organization’s information technology systems”; and

• Business Consultant – “an individual who provides advice or services to a business or organization in respect of its performance, including advice or services in respect of the operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization”.

 In addition to meeting the above definitions, qualifying IT and Business Consultants must also:

• perform their duties either through a corporation (where they are a director or party to a unanimous shareholder agreement) or a sole proprietorship (providing services under a business name registered with the province); and

• be paid for their work at a rate of at least $60 per hour (excluding bonuses, commissions, expenses, etc.).

These changes have been presented as providing IT and Business Consultants with greater flexibility in finding work. Critics of Bill 88, however, have cautioned that this new classification system may instead incentivize businesses to dismiss traditional employees (who enjoy a host of statutory benefits) in favour of using labour operating beyond the scope of employment standards legislation.

The IT and Business Consultant exclusions from the ESA take effect on January 1, 2023.

3)     Digital Platform Workers' Rights Act for Gig Workers

In many ways, the Digital Platform Workers’ Rights Act (the “DPWRA”) is the centrepiece of Bill 88. It creates a new regime to provide minimum rights to gig workers. As readers may know, most digital ridesharing and food delivery apps operate using drivers (and other workers) whom they classify as independent contractors. This designation excludes workers from various employment protections, such as a minimum wage, vacation pay, and severance.

The DPWRA addresses this situation by prescribing a host of minimum standards that will apply to qualifying gig workers. These include:

• the right to receive a minimum wage and retain tips;

• the right to information (related to how pay is calculated and work is assigned);

• rules governing how performance ratings are to be presented and shared with workers;

• a complaint and enforcement mechanism; and

• protection from reprisal related to DPWRA rights.

The DPWRA explicitly leaves open the question of whether gig workers are employees or independent contractors. This topic has been hotly contested and is currently the subject of litigation. If nothing else, however, the DPWRA will act as an interim measure to provide at least some rights to a class of functionally unprotected workers.

The DPWRA will take effect at a yet to be specified future date.

4)     Naloxone Kits and Employee Training

Employers who become aware (or ought reasonably to be aware) that there is a risk of an employee suffering an opioid overdose at work will be required to stock naloxone kits at their worksites, and train staff on how to use them. Bill 88 also includes limits on personal information that can be shared for the purposes of complying with this new obligation.

The naloxone kits and training requirement will take effect at an unspecified future date.

Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.