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[HR] What Bill 148 & Bill C-44 Could Mean for Your Business

On May 30, 2017, the Ontario government decided to move forward with some of the 173 recommendations from the “Changing Workplace Review” final report which includes broad ranging amendments to Ontario’s Employment Standards Act.

At the same time, the government also announced that they will be increasing the minimum wage effective January 1, 2018, which was not included in the report.

To that effect, proposed legislation, Bill 148, The Fair Workplaces, Better Jobs Act, 2017, was tabled on June 1, 2017 in Legislature. As stated by the Ontario Ministry of Labour statement and background documents and Bill 148, measures that will amend the Employment Standards Act and the key dates on which the changes come into effect are as follows:

January 2018

  • Changes to minimum wage – minimum wage increases to $14/hour.
  • Public holiday pay – The public holiday pay calculations will change.
  • Overtime – The mixed hourly rate will be removed. (For employees with multiple rates of pay, employer pays the full rate of the work being performed after weekly threshold of hours is reached)
  • Leaves of Absence – There will be increases to periods of absence. Calculation changes for public holiday pay refer to regular wages in the pay period before the holiday divided by the days worked (rather than a four-week period of regular wages divided by 20)
    • Personal emergency leaves to change from 10 days unpaid for employers with 50 employees or more to 8 days unpaid and 2 days paid, and leave is extended to ALL employers.
    • Family medical leave to change from current 8 weeks to 27 weeks.
    • Pregnancy leave for still birth/miscarriage to change from 6 weeks to 12 weeks.
    • Parental leave to change from 35/37 weeks to 61/63 weeks (the effective date for this change is not proclaimed yet.)
    • Crime related child disappearance leave to change from 52 weeks to 104 weeks.
    • Introduction of “Death of a child” leave of up to 104 weeks.
    • Domestic or Sexual violence leave of 10 days or 15 weeks, as eligible, in addition to the Personal emergency leave, for purposes of medical attention, victim services, counselling, relocation, legal/law enforcement purposes or other prescribed purposes.
  • Vacation entitlement – to change from current 2 weeks after 5 years of service to 3 weeks after 5 years of service.
  • Vacation records retention – to change from current 3 years to 5 years.

January 2019

  • Changes to minimum wage – minimum wage increases to $15/hour.
  • Three hour work rule – minimum wage pay concept is removed. Currently employees who are required to report to work, need to be paid for at least 3 hours at the minimum wage rate. This changes to 3 hours at their regular rate of pay.
  • Scheduling changes – Expanded application, advanced notice required.
    • Employee has the right to refuse work if scheduled with less than 96 hours of notice. (Except in cases of emergencies or public safety instances)
    • Minimum pay of 3 hours for on call workers, to apply to unworked on call periods as well.
    • Minimum pay if shift is cancelled without notice – 3 hours of regular rate of pay if cancelled with less than 48 hours of notice. (Exception for circumstances outside employers control)

Maternity/Parental Leave benefits

In the Canadian Parliament, bill C-44, which received royal assent in June 2017, there are changes to the current EI benefit for Maternity and/or parental leave. They are to change in January 2018, from the current 52 weeks benefit period with a 50 week EI benefit at 55% of pay to an option to offer an 18 month maternity & Parental EI benefit – so a 78 weeks benefit period with a 76 week EI benefit at 33% of pay.

Employee misclassification

There is proposed legislation in bill 148 which would prohibit employers from misclassifying employees as “independent contractors.” This is intended to address cases where employers improperly treat their employees as if they are self-employed and not entitled to the protections of the ESA. The government proposes to make certain that employees are not misclassified as independent contractors, thus ensuring that they get the benefits they deserve. To enforce these changes, the province will hire up to 175 more Employment Standards Officers and launch a program to educate both employees and small- and medium-sized businesses about their rights and obligations under the Employment Standards Act.

Employers that misclassify their employees could be subject to penalties including prosecution, public disclosure of a conviction and monetary penalties. In the event of a dispute, the employer would be responsible for proving that the individual is not an employee. There will be no change to the definition of “employee” to include a “dependent contractor.”

Enforcement and employer liability

  • Joint liability: The proposed legislation would remove the provision that requires proof of “intent or effect” to defeat the purpose of the Employment Standards Act, 2000 when determining whether related businesses can be treated as one employer and held jointly and severally liable for monies owing under the Act. The current language has limited the effectiveness of the joint liability provisions.
  • Self-help kit before filing a claim: The proposed legislation would no longer require employees to contact their employer before filing claim under the Ontario Employment Standards Act (ESA). Under the proposed changes, the Director of Employment Standards could no longer refuse to assign an Employment Standards Officer to investigate an ESA claim due to insufficient information from the claimant.
  • Penalties for non-compliance of the ESA: The proposed legislation would increase flexibility around the administrative monetary penalties that Employments Standards Officers can give out to employers that do not comply with the ESA.
  • The government also intends to amend a regulation under the ESA to increase the maximum administrative monetary penalties for non-compliant employers from $250, $500 and $1000 to $350, $700 and $1500, respectively.
  • The proposed changes would allow the Director of Employment Standards to publish (including online) the names of individuals who have been issued a penalty, a description of the contravention, the date of the contravention and the amount of the penalty.
  • Interest on unpaid wages: The proposed legislation would enable Employment Standards Officers to award interest on employees’ unpaid wages and on fees that were unlawfully charged to employees. The Director of Employment Standards would be allowed, with the Minister’s approval, to determine rates of interest for amounts owing under different provisions of the ESA.

Key web portals for more details and expanded information on topics covered in this blog:

Have questions? Leverage your complementary HR consultant services at Beneplan, to assist you with your HR needs. We’re available, between the hours of 8:30am to 4:30pm, Monday to Friday, at +1 (647) 943 0247 or +1 800 387 1670 or you can email us at hr@beneplan.ca.