February 8, 2018

Bill 148, also known as the Fair Workplaces, Better Jobs Act, 2017, made the most significant changes to the Employment Standards Act (ESA) in decades. Many of those changes took effect January 1, 2018; others will take effect within the next two years. In this audio session, experts will explain what employers need to do to ensure they are in compliance with those changes, identify the changes that will have the greatest impact on unionized workplaces, and provide practical tips to help employers and unions adapt their practices to take into account these new employment standards.

  • Employee misclassification: In light of the new prohibition on misclassification of workers as “independent contractors,” should organizations review their relationships with independent contractors to ensure that they are not really employees? What evidence will an organization require to rebut the new presumption established by s.5.1(2) of the ESA that a worker is an employee and not an independent contractor?
  • Personal emergency leave: Given the new restriction against requiring an employee to provide a medical note to substantiate a claim for personal emergency leave, can employers still request medical notes from employees who take personal emergency leave? Other than a doctor’s note, what constitutes “evidence reasonable in the circumstances” that an employee is entitled to a personal emergency leave day? What current contractual entitlements (e.g. sick leave) can be counted to reduce or displace an employee’s entitlement to personal emergency leave?
  • Domestic or sexual violence leave: In what circumstances can an employee take domestic violence or sexual violence leave? What evidence can an employer require an employee to provide to substantiate a claim for domestic violence leave? What must employers do to protect the confidentiality of information obtained? What role should unions play in assisting employees to access this leave?
  • Equal pay for equal work: What are the exceptions to the requirement to pay casual, part-time, temporary or seasonal employees the same rate as full-time employees who perform “substantially the same” work? What constitutes work that is “substantially the same”? Who will ultimately be held legally responsible for ensuring that a temporary help agency employee is paid at the same rate as the employees of the agency’s client? What effect will the ESA‘s equal pay for equal work provisions have on collective agreements that calculate seniority based on shifts or hours worked?
  • Scheduling: How do the Bill 148 amendments to the ESA affect employer scheduling practices and scheduling provisions contained in collective agreements? What changes to collective agreement language should unions and employers negotiate to deal with the new employee right to request changes in work schedules or work locations?