Highlights of the new Fair Workplaces, Better Jobs Act, 2017 and what it means for employers and entrepreneurs. Part 2

The Fair Workplaces, Better Jobs Act, 2017 put in place in late 2017 is a far-reaching piece of legislation that makes important amendments to several laws such as the Employment Standard Act (ESA), the Labour Relations Act and the Occupational Health and Safety Act.

While most of the media focus on these changes has been to the increase in minimum wages, there are other changes to the ESA that can have considerable effects to your organization’s internal human resources policies, existing compensation structure and total payroll. The enforceability of some terms and conditions of employment contracts currently in place can also be affected.

The new legislation at a glance

Increased minimum wage rates:

The minimum wage increased by close to 30% over 18months. So, the general minimum rates are rising from $11.60/hour to $14.00/hour as of January 1^st 2018. It is then expected to increase to $15.00/hour again on January 1^st 2019. Lower minimum wages for other various positions (liquor servers, students under 18, etc.) will grow by the same percentage.

Equal pay for equal work:

The Act confirms the ideology of where all employees who perform “substantially the same kind of work” under the same conditions and requiring the same skills are entitled to the same rate of pay regardless of their employment status (full-time, part-time, casual, temporary or seasonal). Variations in pay may be allowed through a seniority system, a performance system or based on other factors, like quality or quantity of production. Employees of temporary help agencies are also entitled to equal pay when they perform the same work as their counterparts who are employees of the agency’s client. A new provision in the Act also provides for a one-week notice period when an assignment, scheduled to last longer than three months, is terminated early.

Misclassification of employees as “independent contractors”:

The Act now prohibits employers from treating employees as if they are independent contractors. If an employer misclassifies some employee/employees as independent contractor/contractors the burden of proof is shifted to them. In such cases, they could be subjected to strict penalties (prosecution, fines, conviction, etc.) in addition to potential tax repercussions.

Additional ESA leave entitlements:

Domestic and sexual violence leave: The Act is now introducing leave for domestic and sexual violence. Now, employees who have been working for at least 13 weeks are eligible for an initial 10 days of leave and up to 15 weeks to deal with domestic or sexual violence that they have personally experienced. While they can also take this leave to care for their children that have been threatened with or experienced sexual or domestic violence.

Pregnancy and parental leave: The Act increases the leave provided for miscarriage or stillbirth from 6 weeks to 12 weeks. The Parental leave is extended from 35 weeks to 61 weeks for employees who took a pregnancy leave and from 37 to 63 weeks for those who haven’t.

Family medical leave: Under the proposed changes, unpaid leave to care for an immediate family member, step-relative or other relative who is dependent on the employee has been increased from 8 weeks to 28 weeks in a 52-week period. 

Personal emergency leave: All employees, including in a workplace with 50 or more employees, will be eligible to two paid days and eight unpaid days to deal with a personal emergency. Personal emergencies consist of: personal illness, injury or media emergency, leave related to death, illness, injury, medical emergency or other urgent matter relating to a family member.

Critical illness leave: an employee is entitled to take up to 17 weeks of leave during a 52-week period to care for a critical ill adult family member.

Leave for child death or for crime-related child disappearance: employees who have worked for at least 6 consecutive months will be entitled to a leave of up to 104 weeks if their child dies. The unpaid leave for crime-related child disappearance is extended from 52 weeks to 104 weeks.

Changes to vacation entitlements:

Employees who have five or more years of service with an employer are provided with a minimum of three weeks of annual vacation leave. Employees with less than three years continue to be entitled to two weeks of vacation per year.

Enhanced employment standards enforcement:

The government plans to hire 175 additional employment standards officers and to conduct more inspections. Employment standards officers have more authority and discretion to determine and enforce penalties for employers that do not meet the standards. The Director of Employment Standards has now been granted the authority to accept a security for debts by the employer, issue warrants or register a lien to collect the money. The Director is also authorized to publish online the details of any contravention or other remedies.

Other changes to be highlighted:

The proposed legislation also encompasses several other sweeping changes to scheduling rules, including the rights for employees to request a change in work location or schedule and to refuse a shift or being placed on a call without a four-day notice.