148 Things You Need To Know About Bill 148
This Fall has officially been a whirlwind for employment law in Ontario.
On November 22, Queen’s Park passed Bill 148, otherwise known as the Fair Workplaces, Better Jobs Act 2017. The Act gives employment law in this province its first facelift in over a decade, and it’s a major one.
The Bill is, in a word, complicated. It makes multiple technical amendments to several different Acts, namely the Employment Standards Act (“ESA”) but other legislation as well. Some of the new provisions will have an immediate noticeable impact, while others will be more technical and subtle. The deadlines are staggered, but begin rolling out through the next few weeks and into 2019 as well.
While reviewing the Bill in its entirety would be a gargantuan task, here are a few important highlights:
• There is a significant government crackdown on misclassifying employees as independent contractors. Employers now have a reverse onus to prove that an individual is not an employee if they are not paid and protected as one, otherwise they will be deemed to be employees.
• Employers are not to require employees to wear elevated footwear (think high heels) unless it is required to do the job safely. While this clearly would not apply to a bar or restaurant, exceptions are in place for the entertainment and advertising industries.
• Minimum wage is going up. The new minimum wage will be $14 per hour as of January 1st, and will rise to $15 per hour in 2019. There are still separate wage categories for students, liquor servers, and homeworkers, but those too have gone up.
• Parental leave is being extended to fall in line with the new federal option of 18-month leave. In Ontario, parents will now receive either 61 or 63 weeks of available leave, depending on whether or not they are also taking pregnancy leave. Note, however, that EI premiums have not increased; the same amounts are instead being repackaged to extend over the longer duration, if desired.
• All Ontario employees covered under the ESA will now be entitled to 10 days of personal emergency leave per year, with employers mandated to pay 2 of those 10 days. These can be used for illness or medical emergency, so they’re essentially guaranteed sick days, if needed.
• Employees are now entitled to a new category of Domestic or Sexual Violence Leave if an employee or their child faces or is threatened with domestic or sexual violence. This increases the number of leave categories under the ESA to 10, with each having unique requirements and characteristics.
• Employees who have been with an employer for more than 5 years will now be entitled to a mandated 3 weeks vacation, paid out at 6% per annum instead of the previous 2 weeks.
• Come April, employers will be required to provide equal pay for employees who do work that is “substantially the same but not necessarily identical.” While the law is in place to protect major wage discrepancies and to help eliminate a gender pay gap, there are exceptions for criteria such as seniority or merit.
• Starting in 2019, employees with an employer for longer than three months are entitled to request a flexible schedule, including either increased or decreased hours, a change in location, or changes in shifts. Employers who receive such requests in writing will be required to discuss them with the employee, and either grant them or provide reasons for a denial.
Okay, so maybe that wasn’t 148 things, but the point remains that changes are coming quickly.
For both employers and employees, the most important part will be training and education throughout the workplace. These changes will likely require workplace policy overhauls, including potentially contract and procedural reviews and updates. For employers, recruiting the services of a trained professional will help ensure that you remain compliant at all times, and can help keep your business ahead of the curve.
The Bill will no doubt be challenging for many employers. Although a matter of debate, a sharp increase in the minimum wage will be an uncomfortable adjustment for many employers, and may present a hardship in certain situations. Employers will also be re-evaluating job descriptions in the coming months, to ensure that individuals are paid equally for equal work, and that proper policies are in place to account for any discrepancies.
While it can be costly, and at times frustrating, compliance is not to be taken lightly. The Ministry of Labour has hired a number of new employment standards officers (over 50 in the GTA alone) to investigate businesses of all size throughout Ontario. Not all Ministry investigations are announced. Inspectors are empowered to perform unannounced investigations, or investigations in response to Ministry complaints as well. Maintaining legal compliance can help avoid contraventions of the ESA, which can lead to fines or other penalties as well.
For employees, the Bill is a landmark in improving the rights of employees. The Bill makes multiple efforts at improving the quality of life for workers, from the increased minimum wage to increased schedule flexibility to protection against the occasional sick day. While there will certainly be growing pains in place that may be rocky for some, the Bill fosters a positive change in the long run for the protection of all Ontario employees.
The bottom line is that while the Bill may be long and complicated, your workplace still needs to be ready for all the changes yet to come.