Ontario’s Bill 79, the Working for Workers Act, 2023 received Royal Assent on October 26, 2023. Since becoming law, new obligations have been imposed on employers throughout the province, while employees’ rights have been expanded.

This blog will provide a high-level overview of these rights and obligations introduced by the Working for Workers Act, 2023 as it has amended the Employment Standards Act, the Occupational Health and Safety Act, and the Fair Access to Regulated Professions and Compulsory Trades Act, among other pieces of provincial legislation. Employers must be aware of these new requirements and ensure that they are compliant with the new legislation.

Amended Legislation Imposes New Obligations and Increased Fines Against Employers

The Working for Workers Act, 2023 has amended several critical areas for employees and employers across Ontario. It also highlights additional initiatives impacting much of the province’s workforce. Some of these vital points are outlined in further detail below.

Occupational Health and Safety Act (OHSA) Offences

Under the Working for Workers Act, 2023, corporations convicted of an offence under the Occupational Health and Safety Act will see an increase in maximum fines from $1,500,000 to $2,000,000. However, it is essential to note that corporations alleged to have committed a violation before October 26, 2023 will not be subject to this increased penalty. This increase comes after a recent maximum fine increase in 2022, which saw the maximum fine for individual corporate officers and directors increase from $500,000 to $1,500,000.

Group Terminations

The new legislation has amended the Employment Standards Act by expanding the definition of an “establishment” of employment to include employees who work from their private residence (also known as “fully remote employees”). This provides fully remote employees with the same entitlements and protections as employees who work at an employer’s physical location.

As such, fully remote employees are now entitled to the same notice requirements or pay in lieu of notice in cases of mass terminations. Now, when an employee terminates a group of employees within a four-week period, the employer is obligated to provide:

• 8 weeks of termination notice if 50-199 employees are terminated, regardless of the individual employee’s length of service with the employer,
• 12 weeks of termination notice if 200-499 employees are terminated, or
• 16 weeks of notice if 500 or more employees are terminated.

Military Reservist Leave

Previously, military reservists were only permitted to take reservist leave after three consecutive months of employment. Under the new law, military reservists will be granted entitlement to reservist leave (to participate in military skills training or deployment) after two consecutive months of employment. In emergency operations, reservist leave may be granted at any time.

Further, military reservists will be entitled to take leave from work if they are in recovery, treatment, or rehabilitation to recover from mental or physical injuries resulting from their participation in reservist activities.

Protection for Temporary Foreign Workers

The Working for Workers’ Act, 2023 will strengthen protections for temporary foreign workers by increasing fines against employers or other entities convicted of withholding a foreign national’s work permit or passport. The new law has established Canada’s highest maximum fines for those convicted of these offences.

Removing Barriers for Internationally Trained Professionals

The Working for Workers’ Act, 2023 has also amended the Fair Access to Regulated Professions and Compulsory Trades Act to remove employment and qualification barriers for internationally trained professionals looking to enter the Ontario workforce. This amendment imposes an obligation on regulated professions to consult with the government to ensure an adequate number of skilled, competent and qualified regulated professionals working in Ontario as a matter of public interest. Regulated professions are now required to accept “alternative to Canadian experience” when considering an applicant’s registration.

Additional Proposed Amendments in the Working for Workers Four Act, 2023

Additional employment laws were introduced in the Legislative Assembly of Ontario through Bill 149, the Working for Workers Four Act, 2023, on November 14, 2023. These proposed changes include:

• Requiring employers to disclose salary ranges in job postings and banning employers from requiring “Canadian work experience” in job postings;
• Prohibiting employers from conducting unpaid “trial shifts” for new restaurant and hospitality workers, barring employers from reducing employee wages for dining and dashing or other stolen property; and
• Enabling “super indexing” increases to Workplace Safety and Insurance Board benefits beyond annual inflation rates.

Willis Business Law: Providing Trusted Guidance on Employment Law Changes to Windsor-Essex Employers

At Willis Business Law, our labour and employment law lawyers help employers navigate the ever-changing landscape of federal and provincial workplace laws. By helping you understand your obligations as an employer and updating workplace policies, our employment law team can help you mitigate compliance risk and future disputes. We also help employers assess existing workplace health and safety procedures to minimize the risk of workplace incidents and claims. In the event of a dispute, we represent employers and ensure their rights are protected throughout the dispute resolution process and litigation when necessary.

Located in downtown Windsor, Willis Business Law works with clients in Windsor-Essex County and the surrounding regions. To learn more about how we can help you, reach out to us online or call us at 519-945-5470 to schedule an initial consultation with a member of our employment law team.

Family status is a prohibited ground of discrimination in the workplace in human rights legislation, not only in Ontario but across Canada. However, the test for finding such discrimination may vary depending on the jurisdiction in which the alleged discrimination occurred and whether the employer is federally or provincially regulated. An applicant must point to some evidence “beyond mere speculation and accusations” to show that a respondent’s conduct has been contrary to the enumerated grounds in the Human Rights Code.

To minimize the chances of future disputes and allegations of workplace discrimination or constructive dismissal, employers need to maintain open lines of communication with employees, particularly when changes are made to their employment terms. A recent decision from the Human Rights Tribunal of Ontario shows how the Tribunal addressed an application alleging discrimination due to family status.

Application Filed with Human Rights Tribunal Alleging Discrimination Based on Family Status

In Hunter v. HMKRO (Ministry of the Attorney General), the applicant filed an application on April 19, 2018. The application alleged discrimination by the respondent concerning his employment based on family status, contrary to the Human Rights Code.

On March 8, 2023, the Human Rights Tribunal of Ontario (the “Tribunal”) directed that a summary hearing be held to determine whether the application should be dismissed. This direction came from a Case Assessment Direction, which suggested there may be no reasonable prospect that the application would succeed according to Rule 19A of the Tribunal’s Rules of Procedures.

Matter Proceeds to Summary Hearing to Test Discrimination Allegations

Under the Tribunal’s Rules of Procedure, the purpose of a summary hearing is to assess whether an application should be dismissed, either in part or in whole, on the basis that there is no reasonable prospect that it will succeed. This is particularly important if an application concerns issues of fairness related to the Human Rights Code, as the Tribunal cannot address these allegations.

At this stage, it was left to the Tribunal to simply determine whether the application has “no reasonable prospect of success” and not to assess whether “the applicant is telling the truth or assessing the impact of the treatment he experienced.” Instead, the test “of no reasonable prospect of success” is determined by “assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.”

Further, the Tribunal noted that “accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly.” Instead, a summary hearing aims to consider whether the applicant can provide evidence to support his claim that he has been discriminated against, contrary to the Human Rights Code. In the matter of Forde v. Elementary Teachers’ Federation of Ontario, the Tribunal explained that an application may continue following a summary hearing if it is found that there is a “basis beyond mere speculation and accusations to believe that an applicant could show a breach” of the Human Rights Code.

Allegations Based on Denial of Request for Accommodations at Workplace

The application arose following an incident of late arrival at work. The applicant was employed as a court reporter and, in his role, was required to arrive at the courtroom 30 minutes before the scheduled proceeding to ensure that the equipment is correctly set up. Generally, the courthouse reporters are scheduled for 8:30 a.m., 9:00 a.m. or 9:30 a.m. for court proceedings that start 30 minutes later.

In his application, the applicant stated that he had an informal arrangement with his employer to start work at 9:30 a.m. as he was required to drop his children off at school at 9:20 a.m. He claimed that management asked questions about this arrangement in or about September or October 2017 and directed him to submit a formal accommodation request. However, this formal request was denied in February 2018, and the applicant alleged he was told that he would be scheduled for shifts beginning at 9:30 a.m. for four weeks so that he could make alternative arrangements for school drop-off. However, he was not going to be guaranteed 9:30 a.m. shifts beyond that time.

Scheduling Changes Leads to Allegations of Constructive Dismissal

The applicant alleged that he was scheduled for a shift beginning at 9:00 a.m. on March 14, 2018. However, he did not report to work. Again, on March 29, 2018, he reported late and didn’t work that day. The applicant alleged the employer intended to constructively dismiss him by getting him to either accept the changes to his work schedule or leave his employment (which he did on March 29, 2018).

The applicant disagreed with the treatment by his employer. However, the Tribunal noted that the applicant “could not point to any evidence to make the connection between the alleged lack of support and the loss of employment with the respondent and his Code-enumerated ground.”

Tribunal Does Not Have Jurisdiction Over Allegations of General Unfairness

For an application to fall within the Tribunal’s jurisdiction, it must:

… “provide some factual basis beyond a bald assertion which links their ground(s) to the respondent’s actions and explains why they think that these actions are discriminatory in nature.”

The Tribunal ultimately dismissed the application after finding that it had no reasonable prospect of success. The Tribunal explained that even if all the alleged facts were accepted as true, the applicant failed to provide evidence beyond his own suspicions that he was differentiated by the respondent based on Human Rights Code grounds.

The Employment and Labour Lawyers at Willis Business Law Represent Employers in Workplace Disputes

The skilled employment lawyers at Willis Business Law, led by J.P. Karam, understand the importance of implementing proper workplace policies and ensuring compliance with both provincial and federal legislation, including the Human Rights Code. However, when issues arise relating to workplace health and safety and discrimination, it is vital for employers to understand the process once a complaint has been made. At Willis Business Law, our employment and labour lawyers help clients prepare proactively to avoid future incidents and disputes. In cases where an issue proceeds to litigation, our team is ready to protect your interests and advise you of your options to obtain the best possible result.

Willis Business Law is conveniently located in Windsor’s financial district. Our firm proudly represents clients throughout Windsor-Essex and the surrounding areas. To schedule a consultation with a member of our team regarding claims of workplace discrimination or occupational health and safety concerns, contact us online or call us at 519-945-5470.

When Bill 88, or the Working for Workers Act, came into effect in April 2022, it created amendments and exceptions to the Employment Standards Act (the “ESA”). While many new rights were created under these amendments, business consultants and information technology (IT) consultants in Ontario became exempt from the ESA. Employers hiring business or IT consultants must be aware of the new legislative change and be mindful of its potential impact.

The Consultant Exception Under Ontario’s Employment Standards Act

Under the recently-amended Employment Standards Act, workers meeting the definition of a business or IT consultant are not entitled to the ESA’s minimum protections and standards, including termination entitlements, work hours, leaves of absence, and overtime.

This exception applies to workers who would, but for their status as a business or IT consultant, be covered by the ESA. It does not, however, impact whether a person can be considered an “employee” under the ESA.

“Business Consultant” and “IT Consultant” Under the ESA

Section 1 of the Employment Standards Act defines a “business consultant” as a person who provides services or advice regarding the performance of a business or organization’s “operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization.”

The same section defines an “IT consultant” as an individual who provides services or advice to an organization or business regarding their technology systems, which may include “advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business’ or organization’s information technology systems.”

Exclusion From the Consultant Exception

A business or IT consultant may fall under the Employment Standards Act’s consultant exception only if all four of the below conditions are met:

1. The individual meets the ESA’s definition of a business consultant or an information technology consultant.
2. The business or IT consultant provides advice or services either through a sole proprietorship under a business name that is registered under the Business Names Act or through a corporation of which the consultant is a director or shareholder party to a unanimous shareholder agreement.
3. The business or IT consultant and the employer have a written agreement that sets out specific terms, including how much and when the employer will pay the consultant. The written agreement must state the consultant’s hourly pay rate, which cannot include bonuses, benefits, travel allowances, expenses or commissions, and must be $60 or greater per hour.
4. The business or IT consultant is paid the appropriate amount at the appropriate time per the terms set out in the agreement.

If the above four conditions are met, the exception will be applied, and the individual will not be covered under the Employment Standards Act. However, if one or more of the four conditions are not met at any point, the exception will not apply, and the individual may be entitled to certain rights under the ESA.

Employers Should Proactively Review A Worker’s Status

In light of the changes to the Employment Standards Act over the past year, employers should proactively review any existing agreements they have in place with consultants to determine whether such relationships may be affected by the exception.

It is essential for employers to determine whether a consultant is an employee or an independent contractor and whether the ESA applies to the individual in question. If a consultant is deemed an employee entitled to the benefits of the ESA, the employer should subsequently assess whether the consultant is excluded from the ESA’s protections based on the four criteria set out above.

The amendments do not specifically create additional requirements or substantial cost impacts for businesses or employers. Instead, the exception provides employers and workers with certainty regarding their employment status and can enhance the options available to impacted consultants within Ontario’s labour market.

Willis Business Law Provides Windsor-Essex County Employers With Robust Advice on Employment Standards & Consultant Status

The trusted employment lawyers at Willis Business Law offer employers across Ontario personalized, comprehensive legal solutions regarding employee, contractor, and consultant status. We remain current on legislative amendments and provide proactive advice to ensure employers remain compliant and mitigate the risk of wrongful dismissal claims relating to worker misclassification. Our employment team also represents employers in all matters relating to employment agreements and workplace policies concerning worker status.

Conveniently located in Windsor’s financial district, Willis Business Law assists clients in Windsor-Essex and the surrounding areas. To schedule a consultation with a member of our team, please reach out to us online or call 519-945-5470.

As we move into the second month of 2023, it is prudent for Ontario employers with 25 or more employees to remember that they must have a policy to address how the employer electronically monitors their employees. This new requirement became law through amendments to the Ontario Employment Standards Act, 2000, introduced through the Working for Workers Act, 2022 (or Bill 88). Employers who reached 25 or more employees by January 1, 2023, must have this policy in place by March 1, 2023.

Which employers are required to have an electronic monitoring policy?

As of October 11, 2022, all Ontario employers with more than 25 employees as of January 1, 2022, were required to have a written electronic monitoring policy that complies with the requirements of the Employment Standards Act.

For employers that did not meet this threshold as of January 1, 2022, there is no requirement to have an electronic monitoring policy. However, this requirement will apply if an employer grows to 25 or more employees (as of January 1 of any future year). An employer who reaches that threshold must have an electronic monitoring policy in place by March 1 of that same year.

How is “electronic monitoring” defined?

The Employment Standards Act does not define “electronic monitoring.” However, the Ontario government has provided guidance that electronic monitoring would be considered to include “all forms of employee and assignment employee monitoring that is done electronically.” Examples include tracking websites visited by employees during working hours or tracking a delivery vehicle using GPS.

Who does an employer’s electronic monitoring policy apply to?

An electronic monitoring policy pursuant to the Employment Standards Act must apply to all “employees” as defined by that Act, which includes:

• a person, including an officer of a corporation, who performs work for an employer for wages;
• a person who supplies services to an employer for wages;
• a person who receives training from a person who is an employer, if the skill in which the person is being trained is a skill used by the employer’s employees; or
• a person who is a homeworker; and
• a person who was (previously) an employee.

The electronic monitoring policy would not apply to independent contractors. Employers are not required by the Employment Standards Act to have an electronic monitoring policy for independent contractors.

What does an employer’s electronic monitoring need to include?

An employer’s written electronic monitoring policy must include the following:

1. It must disclose whether the employer electronically monitors employers.
2. It must include the date the policy was prepared and when any changes were made.
3. If the employer does engage in electronic monitoring, the policy must include:
   • A description of how and in what circumstances the employer may engage in the monitoring. This would include disclosing whether the employer is monitoring devices issued by the employer or any other kind of electronic monitoring that occurs within the workplace. However, there is currently no guidance on how specific an employer must be in its disclosure of potential uses of information gathered pursuant to its electronic monitoring policy.
   • The purposes for which information obtained through electronic monitoring may be used by the employer.

An employer is permitted to have multiple electronic monitoring policies that apply to different kinds of employees (for instance, one policy that applies to management and one policy that applies to staff).

Is the employer obligated to share the electronic monitoring policy with its employees?

Yes. The employer must share the electronic monitoring policy with its employees at certain times, set out below.

After the employer meets the 25-employee threshold

In addition to putting in place a written electronic monitoring policy, employers must provide a copy of the policy to its employees within 30 days from the date the employer is required to have it. According to the legislative amendments, this date will be March 1 of each year going forward for any employer that had 25 employees as of January 1 of that year.

After any changes to the policy are made

Any time the employer introduces any changes to the electronic monitoring policy, the new policy must be provided to employees within 30 days of those changes being made.

When a new employee is hired

When a new employee is hired, the employer must provide them with a copy of the policy within 30 days of the earlier of:

1. The day the employer is required to have the policy in place; or
2. The day the individual becomes an employee of the employer.

After an assignment employee starts their assignment

If an employer uses assignment employees, if that employer is required to have an electronic monitoring policy, it must be provided to the assignment employee by the later of:

1. Within 24 hours from the start of the assignment; or
2. Within 30 calendar days from the date the employer must have the policy in place.

How can employers use the information gathered under its electronic monitoring policy?

Employers are free to use information collected through electronic monitoring for any purpose whatsoever. However, the employer must disclose what those purposes are or might be within the electronic monitoring policy. This is because the Employment Standards Act does not give employees any privacy rights. For instance, an employer could use information obtained through electronic monitoring, pursuant to its electronic monitoring policy, to discipline an employee.

What rights do employees have in relation to electronic monitoring policies?

Employees can access a limited complaints process regarding their employer’s electronic monitoring policies. The only complaint that can be investigated by the Ministry of Labour or an employment standards officer is an alleged failure of the employer to provide the employee with a copy of the electronic monitoring policy within the mandated timeframe. An employment standards officer does not have the authority to investigate anything related to an employer’s electronic monitoring policy, including the employer’s alleged contraventions of that policy.

However, the Ontario government’s guidance on electronic monitoring policies advises employers to seek legal advice about whether such a policy may create additional entitlements that could be enforced by an employee outside of the Employment Standards Act. Before the passage of Bill 88, the Information and Privacy Commissioner of Ontario argued for a more comprehensive framework to regulate electronic monitoring in workplaces by employers, such as that proposed in the provincial government’s 2021 white paper on Modernizing Privacy in Ontario: Empowering Ontarians and Enabling a Digital Ontario. Provinces such as British Columbia, Alberta, and Quebec already have privacy laws that extend additional privacy protections to employees and include investigation and complaints processes for employer non-compliance. However, such protections for employee privacy were not included in Bill 88.

What are record-keeping requirements concerning workplace electronic monitoring policies?

Employers that are required to have an electronic monitoring policy are also required to retain copies of all such policies for three years after that policy is no longer in effect.

Willis Business Law Advises Windsor-Essex Employers on Employee Monitoring Policies

The knowledgeable employment lawyers at Willis Business Law provide expert business law advice and guidance to clients across Windsor-Essex County and the surrounding areas. The firm develops innovative employment law solutions for public and private sector employers and offers comprehensive guidance on employers’ rights and responsibilities with respect to employee monitoring policies. To schedule a consultation, call 519-945-5470 or contact the firm online.