Canadian Employment Law Today

will provide workers more input into their working conditions, and force employers to more carefully consider how they as- sign work. Changes that will impact workers include: • e right for workers to request chang- es to their working location and sched- ule, without fear of retribution • e right for workers to refuse a shift change made without sufficient notice (four days), without fear of retribution • e right for a worker to be compensat- ed with at least three hours' pay if they are called in for under three hours of work, or if their shift is cancelled within 48 hours of its scheduled start • e right for workers to be compen- sated at three hours of pay for every 24- hour period they spend on-call • e right for workers to be compen- sated at their highest rate of pay when working overtime if they are normally compensated at different rates of pay for various tasks at their employer. Greater responsibilities for employers in relation to the act include: • A change to the test in the act for de- termining joint liability of multiple em- ployers and corporate structures • A prohibition on classifying employees as independent contractors. e change to the law regarding mis- classification of employees as indepen- dent contractors will provide a great deal of additional protection for precariously employed individuals, whose incorrect classification as an independent contrac- tor stands to benefit the employer by per- mitting them to skirt tax, workers' com- pensation, and employment standards laws while doing little to nothing to benefit the employee. Leaves of absence and vacations e government's suggested changes will also lead to an increased accessibility to emergency leave for nearly all workers in Ontario. e most substantial change in this respect is the removal of the thresh- old for the availability of leave: previously, there needed to be at least 50 employees at an organization for its staff to be able to avail themselves of the act's emergency leave provisions. Now, the government's suggested changes will provide each em- ployee, regardless of the size of the em- ployer, up to 10 days of emergency leave each year, with two of these provided as paid time off. Significantly, employers will be prohibited from requiring any form of medical documentation from their em- ployees before providing this leave. e reasons for requesting this leave will also expand to include addressing issues sur- rounding domestic violence. e government's suggestions include an increase in family medical leave from its current length of eight weeks per 52- week period to 27 weeks per 52-week pe- riod. Regrettably, Bill 148 remains silent as to whether the 50-employee threshold be removed for this and all other leaves of ab- sence in the act. Long-service employees (more than five years) will also see an increase in vacation, from two weeks to three, with a corre- sponding increase in vacation pay to cor- relate to the additional week of vacation. Enforcement ese new provisions are irrelevant with- out a commitment to enforcement: a law is only as good as the governing body's enforcement of it. e report suggested expansion of the enforcement provisions of the act to make the Ministry of Labour more responsive to claims by creating a triage system for addressing and assigning claims to different tiers in the ministry. e government's suggested changes do not incorporate this. Instead, the ministry will be provided funding to hire up to an addi- tional 175 employment standards officers. e changes proposed in the report would have represented a sweeping change to the way claims under the act are addressed and prosecuted. Instead, by providing only for additional employment standards officers to field complaints without a more comprehensive adjudication system to back them up, Bill 148 provides more of the same, both literally and figuratively. is increase is warranted, as a number of the suggested changes are likely to lead to a drastic influx of new claims. e Di- rector of Employment Standards is also in- structed to take on claims it would not have accepted previously — specifically, cases where the complainant has not provided the investigating officer with all the neces- sary information. Additionally, the current requirement that the employee attempt to address the matter with his employer be- fore filing a complaint with the Ministry of Labour would be removed. Finally, the government suggests in- creased fines for violations of the act, as well as a new program to identify parties convicted of these violations: the perpetra- tor, their wrongdoing, and the associated penalty will all be named. Ultimately, all employees and employ- ers want a sense of belonging, meaning- ful work, and a paycheque to live on so they can invest in the economy. While the proposed changes make some headway towards achieving this, unless Ontario's government goes further, not only will mil- lennials remain the casualties, but the rest of the workplace too, as we will not have the robust economy necessary to support the workplace as we have known it. Canadian HR Reporter, a Thomson Reuters business 2017 July 19, 2017 | Canadian Employment Law Today CREDIT: GUSTAVO FRAZAO/SHUTTERSTOCK ABOUT THE AUTHORS Natalie C. MacDonald and Geoffrey Lowe Natalie C. MacDonald is the co-founding partner and co-managing partner of Rudner MacDonald LLP, a boutique law firm in Toronto specializing in Canadian employment law. She can be reached at (416) 640-6402 or nmacdonald@rudnermacdonald.com. Geoffrey Lowe is an associate at Rudner MacDonald in Toronto. He can be reached at (416) 640-6402 or glowe@rudnermacdonald.com.

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