Canadian HR Reporter

CANADIAN HR REPORTER September 19, 2016 6 NEWS HR Manager's Guide to Employment Files and Information Management: Legislation and Best Practices uniquely addresses the management of all types of employee information throughout the employment lifecycle, from recruitment to termination. Employment information and documentation management carries legal requirements that protect an organization from litigation, and are essential to the creation of sound policies for efficient, effective, and ethical business practices. Easy to read and understand, this new guide provides Human Resources professionals and others who deal with employee files, either electronically or in paper format, with: • Key legislation and emerging case law • Best practices in the areas of privacy, records retention, human resources information systems (HRIS), and information security • Practical guidance, tools and templates, such as sample policies • Information on all Canadian jurisdictions Know your legal obligations in managing employee files Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Order # 986618-65203 $70 Softcover approx. 100 pages April 2015 978-0-7798-6618-2 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. New Publication HR Manager's Guide to Employment Files and Information Howard A. Levitt, B.A., LL.B., and Tanya Neitzert, B.A., CHRP Brought to you by: © 2016 Thomson Reuters Canada Limited 00228VC-A49657-E98872 distinction between independent contractors and employees, many employers have figured out how to exploit this, he said, so they avoid the direct financial costs of compliance with the act and other employment-related legislation. These include vacation pay, public holiday pay, overtime pay, termination pay, severance pay and premiums for employment insurance and the Canada Pension Plan, along with health benefits. Ontario's recently released Changing Workplaces Review argues that the stark distinction between employees and inde- pendent contractors "no longer captures the reality of the Ontario labour market," he said. Many of these companies or apps in the gig economy are actu- ally employers within the meaning of the ESA, according to Joshua Mandryk, associate at Goldblatt Partners in Toronto. "When you get past the amaze- ment of this modern technology, really, the traditional indicia of employment appear here," he said. "You can't always see the employer but that doesn't mean the employ- er's not there — sometimes we've got to peel behind the curtain." In looking at the ESA, some of these apps are actually temporary help agencies, involving people who "perform work," he said. "In many cases, many of these apps actually structure their fee arrangements so they're not tak- ing it from the client because the client doesn't want to pay, they're actually taking it from the worker. In many cases, this might be up to 20 per cent, and this would be banned by the ESA." When it comes to pay equity, Ontario's Pay Equity Act does not define employer or employee, ac- cording to Emanuela Heyninck, commissioner of the Ontario Pay Equity Commission. "We have to look at the facts and circumstances of the struc- ture and the relationship: Who's got overall financial responsibil- ity, who's got responsibility for compensation, what's the nature of the business and what is most consistent with achieving the pur- poses of the act?" But in the gig economy, rela- tionships are often centred on the individual, meaning a true inde- pendent contractor, and that is not covered by the act, she said. As for the Ontario Human Rights Code, "employment" is not defined under the code and there are no exclusions, so it's differ- ent from other employment leg- islation, according to Katherine Chau, associate at Van Kralingen Law in Toronto. But recent decisions have pro- vided more guidance in terms of the indicia considered, such as whether there's control by the employer with respect to the work conditions and remuneration; and the sense of dependency of the worker. "e code really applies to all workers in the gig economy, re- gardless if you're an independent contractor, part-time, casual, a temp worker, freelance, volunteer or intern," said Chau. "It's important for employers to be more mindful of the fact they have obligations to all of these workers, even if they don't regard them as true employees." Potential solutions The Changing Workplaces Re- view said Ontario common law has long-recognized the "depen- dent contractor" who is entitled to some of the protections of em- ployees, such as reasonable notice of termination of employment, said Phillips. And while the On- tario Labour Relations Act con- tains a provision that states the definition of "employee" includes dependent contractor, "there is presently no provision in the ESA equivalent to the dependent con- tractor provision in the Labour Relations Act." "Clearly, there is a compelling case to be made for enshrining the notion of a dependent contractor in the ESA," he said. When it comes to helping people involved in precarious work, there are several solutions, according to Carmel Smyth, na- tional president of the Canadian Media Guild. These would in- clude better enforcement and an appeals process, along with guar- anteed minimum standards so workers have the same basic pay and health and safety standards as all workers, she said. Sectoral bargaining with mul- tiple employers is another solu- tion, she said, along with regula- tory change and tax breaks or in- centives tied to compliance with health and safety regulations. "Surely, we can find ways to ensure technological change and globalization do not continue to tear away at fundamental gains Canadian workers have fought for, such as limits to working hours, fair pay and safe and healthy working conditions. " On balance, the sharing econo- my or the gig economy is empow- ering for individuals, said Tim Hudak, CEO of the Ontario Real Estate Association and former Ontario MPP. "(ey) can be their own boss at their own time, charge their own course." But people need to be careful in how they approach this because, traditionally, there's been the classic tension between capital and labour, and how to allocate resources between each, he said. "at's served us well, warts and all, over a number of decades. But I think we're in a brand new area now, not really in terms of labour and management but a marketplace of buyers and sellers." Marketplaces aren't regulated through the Employment Stan- dards Act or the Labour Relations Act, nor should they be, said Hu- dak. "We need to resist the temp- tation to put a square peg among two round holes." One solution is to make ben- efits more portable for individu- als as small businesses, "to actually set up a one-stop shop where you can register your business, under- stand what your benefits are, sign up for a portable pension plan, knock down those walls, make it easier to run a small business and plan for eventuality if it falls through the cracks," he said. "e solution is to make the economy stronger through board- based policy initiatives and to recognize people are going to choose to be entrepreneurs in the workplace, so how do you actually make the Canadian small business owner as successful as possible and ensure there's a safety net?" 'Dependent contractor' a consideration GIG ECONOMY < pg. 1 "Employers have obligations... even if they don't regard them as true employees."

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