Canadian Employment Law Today

6 | January 9, 2019 Canadian HR Reporter, a Thomson Reuters business 2019 Cases and Trends ings, and prohibited reprisal against em- ployees who discussed their wages, among other measures. Bill 66, the Restoring On- tario's Competitiveness Act, 2018, which would make it easier to have employees work more than 48 hours per week and to average employees' wages over up to four weeks in calculating overtime pay, was also tabled in December and will likely become law in early 2019. ese changes, along with the passage of Bill 47, underscore the pro- vincial Conservatives' intent to roll back any recent employment law amendment they deem bad for business. Indeed, Ontario Premier Doug Ford promised to do away with many of Bill 148's worker-friendly amendments and he de- livered on this promise in November when Bill 47 became law. While a more detailed overview of Bill 47's ESA amendments can be found in my article "An employment stan- dards U-turn in Ontario," (Canadian Em- ployment Law Today, Nov. 21, 2018), below I've highlighted some of Bill 47's key ESA and LRA amendments: ESA • A repeal of the entitlement to two paid and eight unpaid personal emergency leave (PEL) days and an introduction of new unpaid leave entitlements for personal illness, bereavement and family responsi- bilities • A freeze of the minimum wage at $14 per hour • A repeal of scheduling provisions previ- ously slated to take effect on Jan. 1, 2019 • A repeal of the reverse onus that required organizations to prove that a worker is not an employee (and is instead an indepen- dent contractor or volunteer) where there is a dispute over employment status • A repeal of provisions requiring equal pay for equal work based on employment sta- tus • A rollback of the rule prohibiting employ- ers from requesting a doctor's note when employees request time off due to illness • Maintenance of the formula for public hol- iday pay that was in effect before Bill 148. LRA • A repeal of the requirement for employ- ers to provide employee lists to unions in certain circumstances • A repeal of remedial certification as an au- tomatic remedy • A repeal of card-based certification for in- dustries other than construction Many organizations lauded these chang- es — regarding them as a necessary resto- ration of the balance of interests of both labour and business — even as many over- looked their unintended consequences. After investing the time and expense to adjust their workplace policies, procedures and employee entitlements in areas such as scheduling, compensation, vacations, attendance, job-protected leaves and on- call scheduling, to name only a handful, the repeal of Bill 148 amendments requires employers to go through the process once again — and this time with greater risk both from a legal and workplace engagement perspective. A major employer concern is rolling back entitlements while ensuring the changes do not constitute constructive dismissal — which allows an employee to claim that an employer's significant unilateral change to a fundamental term or condition of employ- ment with which the employee disagrees amounts to dismissal by the employer. Even though employers are well within their rights to roll back certain entitlements in the wake of Bill 47's passage, certain of those changes, without employees' agree- ment, could be such significant unilateral changes to fundamental terms or condi- tions of employment that they constitute constructive dismissal. For example, for employers that substantially increased some employees' wages in 2018 to ensure equal pay for equal work based on employment status, unilaterally rolling those wage in- creases back could amount to constructive dismissal, even though the increases were only implemented to comply with Bill 148 amendments. To minimize this risk, em- ployers should secure employee sign-off on significant changes before their implemen- tation. Risk of employee disenchantment An equally-pressing concern facing em- ployers is how to navigate the process and effectively communicate these changes without compromising their credibility and good standing with employees. Whatever changes employers may choose to imple- ment, the changes should be made strategi- cally. Employers should pay close attention to the new law's potential impact on work- place engagement and morale. Employers may be permitted to claw back some entitle- ments, but doing so could cause a backlash in the workplace, especially for organiza- tions that rely on minimum-wage work- ers who were expecting their hourly pay to increase by another $1 on Jan. 1, 2019. Others may be upset that Bill 148's revised scheduling rules and paid PEL entitlements have been repealed. To some workers, these amendments were likely as significant as the minimum wage increase. Potential em- ployee irritants abound in the wake of this legislative about-face. However, employers have an opportunity to turn what could be a significant HR chal- lenge into a victory. It starts by communicat- ing the relevant changes introduced under Bill 47, and what they mean in the context of your workplace. Employers should be cogni- zant of the changes that matter most to their workers — and organizations already strug- gling to attract and retain top talent will need to tread lightly throughout this process. Town hall meetings with transparent dis- cussions including key management team members are one tool that can help defuse employee disenchantment. inking twice before rolling back some of Bill 148's entitlements is another option. If moving forward with a wage increase to $15 for your entire workforce isn't afford- able, for example, it may be possible to maintain the two paid leave days that Bill 148 provided. Or, perhaps providing extra vacation days would be a step toward ap- peasing agitated employees. Even main- taining a policy that limits when a doctor's note will be required to justify the use of sick days could help to send a more accom- modating message. If your management and HR team decide to take this approach, be explicit when com- municating your intentions. Make it clear that although your organization is not re- quired to maintain any of Bill 148's repealed provisions, you care about your employees, understand why they may be upset about these changes and are determined to main- tain a strong relationship. It's also crucial to display empathy and drive home the mes- sage that your organization understands how repealing Bill 148 is likely to have a sig- nificant financial impact on employees' per- sonal finances. In doing so, the point is made clear: your organization values its people. Embracing that message can help maintain employee engagement, minimize turnover, preserve productivity and turn what could have been an HR disaster into a culture-building op- portunity. Joel Smith is a lawyer with Williams HR Law in Markham, Ont., where he practices management-side labour, employment, and human rights law. He can be reached at (905) 205-0496 ext. 224 or jsmith@wil- liamshrlaw.com. Rollbacks could lead to constructive dismissal « from GOOD NEWS on page 1 A pressing concern is how to communicate these changes without compromising good standing with employees.

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