Same Game, New Rules: Changes to Ontario's Workplace Laws

Last month, the provincial government passed into law Bill 148, the Fair Workplaces, Better Jobs Act, 2017. This Act brings with it significant changes to employment law in Ontario for both employees and employers. In particular, Bill 148 will overhaul parts of the Employment Standards Act, the Labour Relations Act and the Occupational Health and Safety Act.

This article provides an overview of some of the major changes coming into effect to help employers ensure compliance, and employees understand their new rights and obligations. As always, if you have specific questions about how these legislative changes may impact your workplace, please contact us directly.

Increase to the Provincial Minimum Wage

Ontario's hourly minimum wage rates will soon be increasing, as follows:

1. General Minimum Wage: 
   1. increase to $14.00 as of January 1, 2018; and
   2. increase to $15.00 as of January 2019.
2. Liquor Servers' Minimum Wage: 
   1. increase to $12.20 as of January 1, 2018; and
   2. increase to $13.05 as of January 1, 2019.
3. Student Minimum Wage: 
   1. increase to $13.15 as of January 1, 2018; and
   2. increase to $14.10 as of January 1, 2019.
4. Homeworkers' Minimum Wage: 
   1. increase to $15.40 as of January 1, 2018; and
   2. increase to $16.50 as of January 2019.

The cost impact of an increased minimum wage for Ontario employers may be great, especially for smaller to mid-sized employers, with limited resources and tight profit margins. It may further result in increased costs for certain goods and services, reduce the number of available jobs and incentivize automation. Employers are also advised to expect upward pressure from non-minimum wage staff who may in turn expect equivalent pay raises themselves.

A Ban on High-heeled Shoes

With immediate effect, Ontario employers may no longer require that workers wear high-heeled shoes, unless it is necessary for the safe performance of their job. This change limits the ability of employers, particularly in the restaurant and hospitality industry, from requiring that female staff wear shoes with elevated heels.

There is, however, a limited exception to this rule. It does not apply to employers of a worker that operates as a "performer in the entertainment and advertising industry." The term "entertainment and advertising industry" captures: live or broadcast performances; visual, audio or audio-visual recordings of performances, and performances of any kind, including theatre, dance, ice skating, comedy, musical productions, variety, circus, concerts, opera, modelling and voice-overs.

A Focus on 'Independent Contractors'

Bill 148 expressly prohibits employers from treating employees as independent contractors. It further puts the onus on employers to demonstrate that a person engaged as an independent contractor is properly characterized as such, and is not in fact an employee. 

In light of this change, businesses that currently engage the services of independent contractors would be prudent to review the nature of these relationships with an employment lawyer to ensure that unintended liability does not result.

The 3 Hour Payment Rule for Shift Scheduling

Bill 148 requires that employers must pay their employees for a minimum of 3 hours, if:

1. the employee regularly works three hours a day;
2. the employee is required to attend at work; and
3. then works less than 3 hours, despite being available to work longer.

This requirement may limit the flexibility that employers presently have in shift scheduling. Accordingly, employers will want to carefully plan their scheduling needs to avoid situations where they are required to pay employees for an anticipated workplace need that does not in fact materialize.

New Requirements for Paid and Unpaid Leave

1. Personal Emergency Leave: Bill 148 will require all employers (not just those with 50 or more employees) to provide personal emergency leave to their staff. In addition, provided that the employee has been working for at least one week, he/she is entitled to receive two (2) days of paid personal emergency leave. This new requirement may be particularly onerous for small employers with limited resources.
    
2. Domestic or Sexual Violence Leave: As of January 1, 2018, workers that have been employed for at least 13 consecutive weeks are entitled to take unpaid leave if he/she, or their child, experiences domestic or sexual violence. This type of leave will apply in circumstances where the employee needs: to seek medical attention; obtain victim services; receive counselling; to relocate; or seek legal/law enforcement assistance.
   
   The employee will be entitled to receive 10 days of leave (the first 5 of which must be paid), and up to 15 weeks of job-protected leave. This type of leave, however, raises concerns with ensuring confidentiality and protection of individual privacy. A practical problem is the requirement for an affected employee to self-report. This essentially requires a person to share highly personal information, which they may not feel comfortable providing to their employer, in order to access the required leave.
    
3. Extended Pregnancy Leave: If an employee suffers a still-birth, or miscarriage, their entitlement to pregnancy leave will be extended from 6 weeks to 12 weeks after the pregnancy loss occurs. This entitlement applies only to leave that is commenced after January 1, 2018.

Employee Paid Vacation Entitlement

Effective January 1, 2018, Bill 148 increases the minimum vacation time provided to employees with at least five (5) years' tenure with the same employer from two to three weeks' per year. Practically speaking, the impact of this change in many workplaces may be minimal, as it is common for longer service employees to accrue a paid vacation entitlement of at least this amount. In certain industries, however, this may be less common. As such, it is important to revisit any written employment agreements to ensure that they properly allow for this requirement.

Takeaway for Ontario Employers and Employees

The changes introduced by Bill 148 are significant.  They represent the largest single overhaul to Ontario's workplace law in decades. As such, it is important for employers and employees alike to be aware of the changes. Employees have new entitlements and protections, while employers have a number of new obligations, with which they must comply.

In addition, employers may need to revisit, and revise their existing employment agreements in light of these changes. Among other things, it may be necessary to update such agreements to ensure they make proper provision for increased paid vacation requirements and/or employee leave.

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