Bill 66: Changes to the Employment Standards and Labour Relations Acts Bill 66, which received royal assent on April 3rd, 2019, changes the Employment Standards Act, 2000 (ESA) and the Labour Relations Act (LRA). Workplaces that are covered by the ESA should take note that: Posting requirements are no more: Employers are no longer required to display a poster in the workplace delineating the ESA’s applicable regulations and rules. However, employers remain obligated to provide a poster delineating ESA rules and regulations to their employees. Agreements extending the ESA overtime limit no longer require approval: Employers no longer need to apply for approval to make agreements allowing their employees to exceed 48 hours of work in a work week. As long as there has been an agreement between the employer and the employee extending the amount of hours the employee can work, employers are not violating the ESA. Overtime-averaging agreements no longer require approval: Employers no longer need to apply for approval to make an agreement with an employee to average their employee’s hours of work for the purpose of determining entitlements to overtime pay. Note, however, that the employee’s hours may be averaged in accordance with the terms of an averaging agreement only if the overtime period in the agreement does not exceed four weeks. Workplaces that are covered by the LRA should take note that: The list of non-construction employers has been expanded: municipalities, local boards, school boards, local housing corporations, hospitals, Ontario colleges and universities now no longer apply to the LRA’s rules with respect to construction employees. Employers listed under this new provision may opt-out, but only if: (1) A trade union represents employees of the employer who are employed, or may be employed, in the construction industry as of April 3, 2019; (2) The application must be made by a person with authority to bind the employer; and (3) The election must be filed with the Minister of Labour within three months of April 3, 2019. If you would like more information about these amendments, or would like legal advice to ensure your place of work follows these new requirements, please contact experienced employment lawyer Marty Rabinovitch of Devry Smith Frank LLP at 416-446-5826 or marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawMay 24, 2019September 30, 2020
Cannabis and the Workplace Canada’s proposed Bill C-45, The Cannabis Act, is expected to come into force on July 1, 2018, as will Ontario’s Cannabis Act, 2017. At that point, in Ontario, it will be legal for individuals aged 19 years and older to purchase and consume cannabis for non-medical purposes, to grow up to 4 plants per household, and to carry up to 30 grams on their person. This may result in an increase in the number of recreational users and, because more people are likely to be using or carrying cannabis, it is possible the drug will be found in the workplace. Although the legislation would prohibit the consumption of recreational cannabis in public places and in workplaces, employers must consider that employees who smoke or ingest cannabis (even during their off-hours) may be impaired while on the job, thereby jeopardizing the safety of others in the workplace. All business owners have a responsibility to make employee safety a priority and to properly handle incidents of impairment. It is worth noting that medical cannabis will remain subject to different laws. Unless otherwise restricted under the Smoke-Free Ontario Act, 2017, medical cannabis can be smoked or vaped in places where recreational use would be prohibited. The consumption of other forms of medical cannabis are not similarly restricted. Employers should prepare for the legalization of recreational cannabis and should ensure that they can properly navigate the workplace issues to which it will likely give rise. To this end, employers can: Update Manuals and Policies: Amend workplace policies to include provisions regarding the possession and being under the influence of cannabis while at work, accommodation requirements, disciplinary actions, and the like. Implement Training and Education: Introduce mandatory training and education for employees on topics such as the effects of cannabis, how to recognize impairment, the importance of work safety, and the steps to take if someone is impaired on the job. Introduce Drug Testing (if permitted): Industries or occupations with specific safety requirements are permitted to ask employees to undergo proper drug testing. Implementing a testing policy enables the employer and the employees to clearly understand their respective rights and obligations. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Cannabis Law, Employment LawJune 11, 2018July 5, 2023
Tim Hortons Franchises Reduce Employee Benefits The news has been filled with stories about certain Tim Hortons franchises reducing employee benefits and no longer paying employees for their breaks. What these franchises have done is a shock to many, especially so to their employees. Despite this media storm, what these franchises have done is completely legal and complies with the Ontario’s Employment Standards Act (ESA). Within the ESA, employers must provide employees with: A 30-minute unpaid eating period after no more than 5 hours of consecutive work (unless an employment contract requires payment). This break can be split if the employee agrees. This break is not considered working time under the Employment Standards Act. Additional breaks (ex. coffee breaks) are only paid breaks if the employee is required to stay on premises. Employers are not required to provide benefit plans. If they do, they must comply with the rules against discrimination under the ESA. Two of the Tim Hortons franchises mentioned in this CP24 report are owned by the children of the co-founders of the franchise. These owners have provided a letter to employees outlining the following changes, all of which fall in accordance to all current laws and regulations but have still upset many of their employees: Dental and Health Plan Changes/Reductions 6 months to 5 years employed: 25% coverage 5+ years employed: 50% coverage Breaks are no longer compensated (3 hour shifts will be paid for 2 hours and 45 minutes work) These franchise owners claim that they have implemented these changes to offset the costs that they will be subject to with the new wage increase that was effective as of January 1st, and that they will further evaluate these changes once all costs are known and the minimum wage is increased again in 2019. They have said that they “may bring back some or all of the benefits [they] have had to remove.” The franchise owners assert that these changes are necessary to prevent layoffs at the restaurants. Some organizations, researchers, and government officials have been warning that layoffs will be the result of the increases to minimum wage since it is not being phased in over a significant amount of time. With little “assistance and financial help from head office… like not lowering food costs, raising prices and reducing couponing… franchises have been forced to take steps to protect their business” which has affected employment. If franchise owners cannot control the price of their goods they will take steps to curtail their costs in areas they can control such as benefits and wages. It must be noted however, that many economists believe that the changes to the ESA, specifically the minimum wage hike, will be a positive for the economy. They believe that more income for the estimated 8% of Canadians who work for minimum wage means more money to be spent by those employees which in turn will fuel the economy as a whole. How these changes will play out is unknown. For now, employers must ensure that they are compliant with these changes and put themselves in a position to succeed until the repercussions of the ESA amendments are truly understood. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJanuary 8, 2018June 17, 2020
Bill to increase Minimum Wage hotly debated in Ontario Legislature Bill 148, Fair Workplaces, Better Jobs Act, 2017, is in the midst of being debated by members of the Ontario Legislature. The Bill proposes changes to Ontario’s Employment Standards Act, which include an increase of the minimum wage to $14 per hour by January 1st, 2018 and again to $15 per hour by January 1st, 2019. Political parties are split over the effect the changes will have on businesses and workers. One of the Bill’s sponsors, Hon. Peter Milczyn, said: “the reality is that one out of 10 workers in our province earns the current minimum wage of $11.40. Meanwhile, three out of 10 workers earn less than $15 an hour. This includes millions of people, many of whom are supporting a family, making car payments, trying to save for an education and paying their daily bills. They work very hard every day to try to get ahead, but they feel they’ve been left behind. Increasing the minimum wage will make a real difference in their lives”. Opposition MPP Bill Walker, spoke to the Bill, saying: “the business community is certainly not suggesting, and we’re not supporting, that people don’t need a good living wage. Certainly, at the end of the day, we support a $15 minimum wage. But it has to be done in a timely manner. It has to give people the ability to adjust their business. At the end of the day, the fiscal accountability officer has just come out with a report suggesting that there could be 50,000 jobs lost because of the speed at which they’re going to implement this. So this isn’t just us, Mr. Speaker. This is a third-party resource of this Legislature that is suggesting that.” In any case, the effects of the new rules, if passed, on both employers and employees will be profound. Until then, we will have to wait to see how the changes take shape in their final form. If you are in need of a labour or employment lawyer, please visit our employment page and contact one of our lawyers today. For any other legal services or inquiries, please contact Devry Smith Frank LLP directly at 416-449-1400 or visit our website for more information. By: Stuart Clark, Student-at-Law “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawOctober 18, 2017June 18, 2020
Colleges and Faculty to Continue Contract Discussion to Avoid Strike In a previous blog post, we discuss the call for a strike that Ontario’s colleges faculty members will vote for in the fall, after rejecting a 7.5% wage hike offered by the Ontario government. Now, they are back to negotiating after the Thanksgiving weekend. Ontario’s colleges are back at the bargaining table today, as the strike deadline of October 15th approaches. The talks have been put on hiatus at the end of September after no progress was made. The union represents “full-time professors as well as “partial load” instructors who teach between seven and 12 hours a week, as well as college counsellors and librarians,” and the last offer that was received from the colleges provided a 7.5 per cent raise over four years, as well as improvements to benefits and a lump-sum payment which they did not accept. CEO of the college council, Don Sinclair, has reassured students that the colleges are concerned and will provide updates as they become available. In this case, the government has indicated that, before any strike vote, that the faculty union members vote on the last offer they have received. Employers usually have this right, stored under s. 42 of the Labour Relations Act, which says: (1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of the employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on the terms that he or she considers necessary direct that a vote of the employees to accept or reject the offer be held and thereafter no further such request shall be made. The ability for the employer to call for a vote is a tactic of last resort—and can only be done once. In fact, in 2010, when the current collective agreement was signed, colleges used s. 42 to call for a vote, which approved the agreement with a slim majority. Only time will tell to see if this strategy will pay off for a second time, or if both parties will be forced to return to the bargaining table. Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. By: Nicolas Di Nardo “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawOctober 10, 2017June 18, 2020
Recycling Plant to Pay $1.33M in Fines, Back Wages A recycling plant in North York has been employing temp-workers for years at a low-wage and has been ordered to pay $1.33M in fines and back pay to workers. Canada Fibers Ltd. has violated the City of Toronto’s fair wage policy after a two year investigation revealed they were paying workers below the agreed upon rates. Canada Fibers has two, seven-year contract with the city to process blue bin recyclables, and within those contracts included that all employees, including temp workers, will be paid $12.34 an hour with pay increases tied to inflation. The contracts with the city are worth more than $264 million. After a series of reports by The Star on a worker who had been working for years at minimum wage with the company, $11 an hour at the time, an investigation was launched in 2015 into the company which found that 1,600 workers were owed money due to low wages. The investigation was conducted over two years by the city’s Fair Wage Office. It also found that Canada Fibers uses 5 different temp agencies to staff their facilities. Now, Canada Fibers has agreed to pay approximately $1.2M in good faith payments to employees and a $135,000 administration fee to the City of Toronto. Such an investigation highlights how important Bill 148 is to provide equal work for equal pay to temp agency workers and part time workers, as improvements are needed in the enforcement of this. Part time and temp workers who do the same work as their full time counterparts deserve the same treatment and pay. Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. By: Nicolas Di Nardo “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawSeptember 26, 2017June 18, 2020
Significant Changes Coming to Ontario’s Labour and Employment Laws Ontario is one step closer to approving the minimum wage increase of $15 an hour, however that is not the only change that is on Ontario’s horizon. A legislative committee studying the bill has concluded its work, advancing the bill to the fall session of the legislature, which begins September 11. Bill 148, known as the Fair Workplaces, Better Jobs Act, includes much more than a dramatic increase in the minimum wage. The bill makes large amendments to the Employment Standards Act, 2000 (“ESA”), Ontario’s minimum standards legislation, and the Labour Relations Act (“LRA”), which governs unionization. Many of these changes are favourable to employees, in an effort to alleviate the impacts of precarious work. Based on a worker’s classification as either an “employee,” “dependent contractor,” and “independent contractor,” a worker gets different rights under Ontario’s minimum standards legislation. The Ontario government seeks to introduce an automatic presumption that a worker is an “employee” (entitling them to the most rights) and that it would be illegal for an employer to misclassify its workers (to evade minimum standards legislation). The government also proposed to regulate scheduling inside a workplace. If the bill is passed, an employee who has been working for more than three months in a workplace can request a change in their schedule or work location without fearing dismissal. The well-known “3 hour rule” (i.e that a worker be paid for at least 3 hours for a shift) has been expanded to all workplaces and will even be triggered if an employer cancels a shift 48 hours before the employee was to commence working. An employee will also gain the right to refuse shifts without fear of termination if the request is made less than 96 hours before the proposed shift was to begin. Vacation pay entitlements will also be increased: an employee working less than 5 years for the same employer will continue to receive 2 weeks of paid vacation but an employee working more than 5 years for the same employer will receive 3 weeks of statutory vacation. The government also focused on making stronger provisions for equal pay for equal work. If passed, it would become illegal to pay part-time workers less than full-time workers and temporary help workers less than their directly-hired counterparts (absent other objective factors). Moreover, if a worker believes that they were being paid less on the basis of sex or employment status, they would gain the right to request a written review where the employer must either a) raise their wage or b) provide written reasons about why they disagree. Temporary help agencies would also face further regulation on their practices, including owing its employees one week “termination of assignment” pay (similar to “severance pay”) if the employee was terminated from a contract that was supposed to last 3 months or more. These employees would not get “termination of assignment” pay if they were placed in a new contract within a week. The government also hopes to introduce two (2) days of paid leave of absences and eight (8) days of unpaid personal emergency leave. This leave would cover personal illnesses, injuries and medical emergencies (for both the employee and his or her close relatives) and situations of sexual or domestic violence. Employers can request reasonable evidence of the employee’s entitlement to take the leave. It will also become less burdensome to file a complaint under the ESA. Previously, employees who felt their minimum standards were being breached needed to first notify their employer before making a complaint. This requirement would be removed under the new bill. The Director (the person who enforces the ESA) will also be allowed to collect security for any amounts owing under the ESA. Notices of contravention and Recognitions would be able to be widely publicized, despite privacy laws. Alcohol servers and others would be happy to know that the government has created a more specific definition of what constitutes a “tip” in order to prevent employers from stealing tips meant for their employees. The field of labour and employment law is becoming very complex for both employees and employers. It is important to seek out an experience labour and employment lawyer who knows not only the current law, but changes on the horizon. Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. By: Michelle Cook, Summer Law Student “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawAugust 30, 2017June 18, 2020
Update: 700 Employees at Pearson International Airport Go On Strike By: Nicolas Di Nardo As noted in our blog published earlier this week, 700 employees have gone on strike at Toronto’s Pearson International Airport. The 700 employees represented by the Teamsters union went on strike on Thursday night, after rejecting an offer from their employer, Swissport. Luckily, the Greater Toronto Airports Authority has a contingency plan in place, however no details were provided. Airlines have also said they were prepared if their workers decided to join the picket line. Swissport is connected to 30 of the 74 airlines at Pearson which include airlines such as Sunwing, Air Transat, Air France and British Airways. The proposal presented to employees by Swissport was rejected by a 95 per cent margin. The union believes the contract is unfair to its workers, something they demonstrate as they march with signs and chant “respect” out front of Pearson Airport. So far it is unclear how long this will last, but if you’re trying to catch a plane in the coming days, you may want to check to make sure your airline is not one of those thirty airlines effected. For more details on the strike, please read our blog that goes into more detail on this matter. Devry Smith Frank LLP (“DSF”) is a full service law firm in Toronto that has experienced Labour Law Lawyers that can assist employers in the event of union organizing, bargaining and negotiations, and strikes. If you require a Labour law Lawyer, contact DSF’s Labour Lawyers today, or call our office directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJuly 28, 2017June 22, 2020
Failure to Pay an ESA Order Resulted in Jail Time and a $20,000 Fine By: Michelle Cook, Summer Law Student On June 6, 2017, a Mississauga employer received a jail sentence of 30 days plus an additional fine of $20,000 after failing to pay an order issued by a Ministry of Labour employment standards officer. The order required him to pay about $140,000 in outstanding wages to his 43 workers, many university students. While jail time is rare for Employment Standards Act (ESA) violations, this case shows that the courts are beginning to take a stronger punitive approach to large violators of workplace laws. This comes just after the Ministry of Labour has promised to ramp up enforcement last week, when Premier Kathleen Wynne and Labour Minister Kevin Flynn proposed updates to Ontario’s labour and employment laws, including increased fines for workplace violations. If the legislation is passed, it will add up to 175 employment standards inspectors, enabling inspectors to award damages and interest on unpaid wages. The ministry has failed in the collections process in previous years. Ranging from 2009 to 2015 more than one-third of stolen wages were never recovered, meaning that the victims of wage theft across Ontario have lost out on $28 million. However, since 2015, Ontario employers facing prosecution for workplace violations have risen by more than 40 per cent. Peter David Sinisa Sesek ran Academic Montessori in Brampton and WISE Summer Camp in Mississauga. In addition to the 30-day sentence and an order to pay $127,000 in outstanding wages to former employees – most of which were university students whose individual claims ranged from $700 to $12,000— he was also fined $20,000 for failing to comply with the ministry’s order to pay, which was issued in 2015. The outstanding wages dated all the way back to 2014. His sentence is very uncommon. Over the past two decades there have been fewer than 10 jail sentences for ignoring orders to pay, with the most recent sentence in 2016 only imprisoning the accused boss for one day. The maximum penalty for ignoring orders to pay is one year of imprisonment. In summary, Sesek was convicted under the Employment Standards Act as well as the Provincial Offences Act. Any person who fails to comply or is convicted under the ESA can be: Fined up to $50,000 or imprisonment of up to 12 months, or both; If a corporation, the fine may be up to $100,000; For a corporation with a previous conviction, the fine may be up to $250,000; and If there is more than one previous conviction the fine may be up to $500,000. Also noted in the court bulletin, the court imposes a 25 per cent victim fine surcharge, which is required by the Provincial Offences Act. The surcharge goes to a provincial government fund that assists victims of crime. The Changing Workplaces review has hinted that the maximum penalties for violations of workplace laws will be increasing in the future. Employers should be careful to make sure that they are in compliance with the law and that ESA orders are dealt with seriously and promptly. Devry Smith Frank LLP is a full service law firm that has an experienced group of lawyers within our employment and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawJune 29, 2017June 22, 2020
Minimum Wage Embedded In New Law By: Nicolas Di Nardo With the new minimum wage increase set to become $15 an hour in 2019, it would require the Progressive Conservatives to change labour laws in order to get rid of it. The new wage increase will take effect six months after the June 2018 election. The Liberals have embedded it in the new Fair Workplaces, Better Jobs Act which is still to be studied by all-parties this summer, which is expected to pass in the fall. For more information on the details of this Act, please read our previous posts: Is A $15 Minimum Wage, More Unionization and a Minimum 3 Week Vacation On the Horizon? Update: Ontario Liberals Announce Changes to Labour Law—And a $15 Minimum Wage The Act looks to increase minimum wage to $14 an hour on January 1st, and to $15 an hour on January 1, 2019. It is expected that the Liberals will campaign on this Act as well as the proposed pharmacare plan which is also going to launch on January 1st. Devry Smith Frank LLP is a full service law firm located in Don Mills. If you require representation or have any questions, please contact Devry Smith Frank LLP today. You may contact one of the many experienced lawyers on our website or call us directly at 416-449-1400. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment Law, Labour LawJune 26, 2017June 22, 2020