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SIGNIFICANT CHANGES TO THE EMPLOYMENT STANDARDS ACT

Whitten and Lublin | Nov 24, 2017

The Ontario government recently announced major changes to the Employment Standards Act, 2000 (the “ESA”), the law which governs most workplaces in the province.  Many of these changes will become effective on January 1, 2018, while some others will not take effect until April 1, 2018 (e.g., the work scheduling rules).

Some of the key changes to the ESA include the following:

Minimum Wage

  •  as of January 1, 2018, the general minimum wage will increase to $14 per hour, and then to $15 per hour on January 1, 2019. Following the increase in 2019, the minimum wage rate will continue to be indexed to the rate of inflation.

Vacation Pay

  •  employees with 5 or more years of service will be entitled to a minimum of 3 weeks of vacation time and 6% vacation pay. All other employees with less than 5 years’ service will be entitled to the previous minimum standard of 2 weeks and 4% vacation pay.

 Public Holiday

  •  public holiday pay will be calculated by simply dividing an employee’s total earnings by the number of days worked in the previous pay period.

 Equal Pay for Equal Work

  •  employers will be required to pay all part-time, casual, seasonal and temporary employees at the same rate as full-time employees for performing the same job. The main exceptions to this requirement would be where the wage difference is based on seniority, merit or the quantity/quality of an employee’s production.

 Leaves of Absence

  •  Parental Leave extended up to 61 weeks for employees who take pregnancy leave, and up to 63 weeks otherwise.
  •  Personal Emergency Leave of up to 10 days, the first 2 of which must be paid. Employers will not be allowed to request a doctor’s sick note for this leave.
  •  Family Medical Leave extended up to 28 weeks in a 52-week period to provide care and support to a critically ill family member.
  •  Critical Illness Leave of up to 17 weeks to care for adult family members.
  •  Domestic and Sexual Violence Leave of up to 10 days and 15 weeks if the employee or a child of the employee experiences or is threatened with domestic or sexual violence. The first 5 days of this leave are to be paid.
  •  Leave for Child Death or Crime-Related Disappearance of up to 104 weeks.

 Penalties for Employee Misclassification

  • employers who improperly characterize employees as “independent contractors” will be subject to penalties, including prosecution, fines and public disclosure of a conviction. In the event of a dispute, the employer will have to prove that the individual is not an employee (reverse onus).

 Overtime Pay

  •  employees who are paid two or more regular rates for work performed for the same employer in a work week, will be entitled to overtime pay at time-and-a-half for every hour above the overtime threshold.

 Work Schedules

  •  employees will have the right to request schedule or location changes after having been employed for 3 months.
  •  employees who regularly work more than 3 hours per day, but upon reporting to work are given less than 3 hours, must be paid for 3 hours of work.
  • employees will be allowed to refuse to accept shifts if their employer asks them to work with less than 96 hours’ notice.
  • if an employer cancels a shift within 48 hours of its scheduled start, employees must be paid for 3 hours of work.
  • employees who are “on-call” and available to work but are not called into work or their work ends earlier, must be paid for a minimum of 3 hours of work.

 Penalties for Violations of the ESA

  • the maximum fine for employers who violate the ESA will be increased to as high as $1,500.  The government will also publish the names of those who are fined.