More Changes Ahead for Ontario Employment Law

As we have written about in previous blog posts, important changes were made to Ontario's employment laws at the end of 2021 with the enactment of the Working for Workers Act, 2021. Following hot on its heel, the Ontario government has just introduced Bill 88, the Working for Workers Act, 2022 ("Bill 88"). If passed, Bill 88 would result in further extensive changes to Ontario's employment law landscape.

Below we outline some of the key changes proposed by Bill 88.

1. Digital Platform Workers' Rights Act, 2022

Bill 88 provides for the enactment of a new piece of legislation which would establish minimum rights for workers who perform digital platform work.

Digital platform work is currently defined to mean "subject to the regulations, the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform".

Workers is defined broadly to mean "an individual who performs digital platform work and includes a person who was a worker".

Read together, these definitions would capture the huge number of individuals in Ontario who work through digital platforms. For example, it would likely cover the various delivery or courier drivers who operate through platforms such as Uber, UberEats, SkiptheDishes, among many others. It may also cover a range of individuals who sign up to provide certain services or perform tasks through online platforms such as TaskRabbit or Thumbtack.

Upon enactment, digital platform workers would have the following rights:

• Right to information - This includes specific information about pay and the assignment of work, amongst other information.

• Right to recurring pay period and pay day

• Right to minimum wage

• Right to amounts earned and tips and other gratuities

• Right to notice of removal from an operator's platform

• Right to have all digital platform work-related disputes resolved in Ontario

• Right to be free from reprisal

The proposed legislation would also set out rules relating to record-keeping for digital platform operators, as well as enforcement mechanisms, amongst other rules.

The rights and responsibilities of digital platform operators and workers has been the subject of much judicial attention recently, with the Supreme Court of Canada recently weighing in on the enforceability of a jurisdiction clause in Uber's standard form contracts, before sending the worker classification back to the lower courts to be heard on the merits. If this legislation is passed, it would go a long way to resolving some of the often costly and time-consuming issues that arise in atypical digital platform work relationships.

2. Employment Standards Act, 2000 (the "ESA").

Bill 88 also proposes the following changes to the ESA.

(a )Exempting certain business consultants and information technology consultants from the ESA

To qualify for this exemption the following conditions must be met:

• The consultant must fall within the prescribed definition of "business consultant" or "information technology consultant". These are defined as follows:

• "business consultant" means an individual who provides advice or services to a business or organization in respect of its performance, including advice or services in respect of the operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization;

• "information technology consultant" means an individual who provides advice or services to a business or organization in respect of its information technology systems, including advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business or organization's information technology systems

• The consultant must provide services through a corporation or sole proprietorship.

• The consultant must be paid a base wage of at least $60/hour.

(b) Requirement to prepare written policy on electronic monitoring

In addition to preparing policies on disconnecting from work, if Bill 88 is passed, employers with 25 or more employees will also need to prepare written policies on electronic monitoring.

While Bill 88 specifies this will not affect or limit the employer's ability to use information obtained through electronic monitoring of its employees, employers will need to provide employees with a copy of a written policy which outlines:

• Whether the employer electronically monitors the employee and if so,

• Description of how and in what circumstances the employer may electronically monitor employees, and

• The purposes for which information obtained through electronic monitoring may be used by the employer.

• The date the policy was prepared and the date any changes were made to the policy.

• Such other information as may be prescribed.

Employers will have 6 months from the date Bill 88 receives Royal Assent to ensure it has a written policy on electronic monitoring in place.

(c) Amendment to reservist leave to include leave for Canadian Armed Forces military skills training

S. 50.2 of the ESA will be amended to provide that an employee is entitled to reservist leave if the employee is participating in Canadian Armed Forces military skills training. It will also be amended to state the leave under that section is available after 3 months of employment

3. Occupational Health and Safety ("OHSA")

The main changes to the OHSA proposed by Bill 88 are as follows:

• Requirement to provide naloxone kits - This obligation will be triggered if the employer is aware or ought to be aware that there may be a risk of a worker having an opioid overdose at the workplace. The kit must be located near someone who has received training on recognizing opioid overdoses and administering naloxone.

• Increased fines - The maximum fines for offences under the OHSA will be increased from $100,000 to $1,500,000 for directors or officers of corporations and to $500,000 for other individuals. The OHSA will also now included a list of aggravating factors for determining a penalty.

• Increased limitation period - The limitation period for prosecutions under the OHSA will be extended from one year to two years.

4. Other amendments to employment legislation

Bill 88 also contemplates amendments to the following statutes:

• Fair Access to Regulated Professions and Compulsory Trades Act, 2005 - Bill 88's explanatory note specifies that this legislation would be amended to "establish timelines within which regulated professions must respond to applications for registration from domestic labour mobility applicants unless an exemption is granted from the requirement". This aligns with the previous amendments to this legislation to remove Canadian experiences requirements for qualification registration as a regulated professional.

• Traditional Chinese Medicine Repeal Act, 2022 - The Traditional Chinese Medicine Act, 2006 will be repealed.

Takeaways:

Bill 88 appears to be a recognition by the government of Ontario's shifting employment landscape. Many of the changes contemplated by Bill 88 respond to the increasing prevalence of atypical working relationships and the use of technology in the workplace. Combined with the recent changes arising from the Working for Workers Act, 2021, it is a dynamic time for all those who work or hire workers in Ontario.

We strongly encourage you to stay tuned for further developments on Bill 88 and to consult with legal counsel on the implications that Bill 88 may have for your workplace. If you have any questions, please don't hesitate to reach out to the team at Lee Workplace Law.