Employers should ensure they don't unwittingly expose themselves to liability and penalties
By Stuart Rudner
In 2014, the Ontario government passed the Stronger Workplace for a Stronger Economy Act, 2014. This act included amendments to the Employment Standards Act, 2000, the Occupational Health and Safety Act, the Labour Relations Act, 1985, and the Workplace Safety and Insurance Act.
- greater protection for employees of temporary help agencies
- increased ability to recover unpaid wages
- indexing of the minimum wage
- expanded definition of "worker" under the Occupational Health and Safety Act
- expanded protection for foreign nationals.
Temporary help agencies
Organizations that use temporary help agencies to provide them with workers now have greater risk. Specifically, the Employment Standards Act, 2000 now provides that if an employee of a temporary help agency is not paid, the primary responsibility remains with the agency, but the client of the agency is now also jointly and severally liable for any outstanding wages.
It is therefore conceivable that a client could pay the temporary help agency, but if the agency does not pay the worker, the worker may be able to seek payment from the client. Employers should protect themselves by only retaining reputable temporary help agencies and having clear contracts establishing liability for such circumstances.
Up until recently, there was a $10,000 maximum on the amount an employee could claim for unpaid wages if she chose to bring a complaint through the mechanisms provided for in the Employment Standards Act, 2000. There was also a limit on how far she could go back.
However, there is now no monetary limit on the amount that can be claimed, and employees can seek unpaid wages dating back as far as two years, as opposed to six months. This will likely result in far more claims being brought under the Employment Standards Act enforcement provisions, as opposed to in the courts, as they can be brought without the costs of retaining counsel.
As of October 2015, the minimum wage in Ontario will be linked to the Consumer Price Index of Ontario. Furthermore, the government is now required to review the current minimum wage, as well as the process for adjusting it, every five years commencing on Oct. 1, 2020.
Occupational Health and Safety Act
The definition of a “worker" pursuant to the Occupational Health and Safety Act has always been broader than some anticipate, and has not been limited to “employees." However, several new categories of unpaid workers are now covered, including:
- high school students performing work or services under a work experience program that is sanctioned by the school board
- students performing work pursuant to programs approved by post-secondary institutions
- an individual who is receiving training from an employer but is not otherwise considered to be an employee pursuant to section 1 (2) of the Employment Standards Act, 2000
- anyone else who is specifically prescribed by regulation.
Currently, the Foreign Nationals, 2009 Act provides protection for live-in caregivers as a result of many unfortunate incidents. However, this protection will now be expanded to foreign nationals who are either currently working in Ontario or are seeking work in Ontario pursuant to an immigration or foreign temporary employee program.
Bill 18 includes some other changes as well, including some relating to the Labour Relations Act and the Workplace Safety and Insurance Act. The bottom line is the government is seeking to protect the rights of workers in various contexts, and employers must be aware of these changes to ensure they do not unwittingly expose themselves to liability and penalties.