Employment Standards Act Update

Bill 148, the Fair Workplaces, Better Jobs Act, 2017 is now in effect. The bill included substantial changes from the previous act. We have summarized these changes below. For more detailed information on how the these changes may affect you or your employees click here.

Classification of Students and Interns

There is an addition to the definition of employee:
“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”.
This indicates that students/interns are now be considered employees.

Independent Contractors

“Employers cannot treat a person who is an employee under the ESA as if the person were not an employee”.
This indicates that employers must carefully consider whether an individual is an employee or an independent contractor. Penalties could be incurred if an individual is categorized incorrectly.

Equal Pay for Equal Work

An employer must provide equal pay to workers who perform “substantially the same” (although not necessarily identical) work, if the work requires substantially the same skill, effort and responsibility, and is performed under similar working conditions. There are some exceptions:

Seniority
Merit
Measurement of earnings by quantity or quality or production
Any difference that is not based on the sex of the employee
Record-Keeping

Employers are required to document and retain records of:

The dates and times the employees worked.
If the employee has two or more regular rates of pay for work performed for the employer, and, in a work week, the employee worked in excess of the overtime threshold at each rate of pay.
Written agreements to work public holidays.
The dates an employee is on a leave of absence.
The amount of vacation time and vacation pay the employee earned during the vacation entitlement year and how that amount was calculated.
All records are to be retained for five years instead of three years.
The requirement for an agreement to be in writing is satisfied if the agreement is in electronic format.

Collections and Enforcement

Employees are no longer required to show that they attempted to resolve an issue with their employer before proceeding with a complaint under the ESA.
Penalties for violations under the ESA will increase.
The Director of Employment Standards will be allowed to publish the names of individuals and/or companies who have been issued a penalty, along with a description of the penalty and the amount fined.
Employment Standards Officers will be able to award interest on unpaid wages.
Director of Employment Standards may now accept security for an amount owing under the ESA, issue warrants to collect money, or register a lien respecting money owed.

Minimum Wage Changes To Take Effect

“Public holiday pay will now be calculated as the average daily wages earned
in the pay period leading up to the holiday”.

Holiday day substitutions now must be documented by the employer outlining:

  • The public holiday.
  • The substitution date.
  • The date of the written statement.
Changes to the minimum wage can be found below:
Minimum Wage Updates
Summary of Changes from the Old Employment Standards Act to the New ESA. 
Employment Standards Act Changes