Canadian Employment Law Today - sample

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends Equal pay for equal work now law in Ontario Pay discrimination for part-time, temporary workers focus of amendments BY DAVID MASTER AS OF April 1, 2018, the next tranche of Bill 148 amendments, which focus on enhanc- ing the "equal pay for equal work" protec- tions for employees in Ontario, are in force. ese amendments to the province's Employment Standards Act, 2000 (ESA), which focus on pay discrimination, will most significantly impact employers who rely on part-time, temporary, casual or sea- sonal workers, and temporary help agencies, which typically pay their "assignment em- ployees" (defined in the ESA as an employee employed by a temporary help agency for the purpose of being assigned to perform work on a temporary basis for clients of the agency) less than their "clients" (defined as a person or entity that enters into an arrange- ment with the agency to assign one or more of the agency's assignment employees to perform work for the person or entity on a temporary basis) pay their full-time employ- ees for doing similar work. Key amendments and ministry guidance While every province already has legisla- tion prohibiting pay discrimination based on sex, Ontario will be the first to prohibit pay discrimination based on a "difference in one's employment status," which the amendments define as: • a difference in the number of hours regu- larly worked; or • a difference in the term of their employ- ment, including a difference in permanent, temporary, seasonal or casual status. For employers, this means that all employ- ees, with some exceptions, must be paid the same rate of pay if: • ey perform "substantially the same"(defined by the amendments as the same but not necessarily identical) kind of work in the same establishment • eir performance requires substantially the same skill, effort and responsibility • eir work is performed under similar working conditions. Employers can still pay employees a dif- ferent rate of pay if the difference is not con- nected in any way to sex or employment sta- tus, such as a difference based on seniority, merit or quantity or quality of production. Employers in unionized environments with collective agreements in effect on April 1, 2018, have until the earlier of the expira- tion of their collective agreement or Jan. 1, 2020 to comply. For employees who suspect their pay is less due to their employment status, while they can file a complaint directly with the Ministry of Labour, the amendments allow them to re- quest a review from their employer. Employers must respond by either: • Providing a written a response with rea- sons, if they disagree with the employee; or • Adjusting the employee's pay accordingly. Employers are prohibited from reducing the rate of pay of other employees to comply. When the employee requesting the re- view is an assignment employee, the minis- try's guide to the ESA published on its web- site suggests explaining: • e positions or jobs that they are compar- ing their work to • Why they think the work is equal • Why they think their rate of pay is unequal. While the amendments do not expressly require clients of temporary help agencies to share their wage information, the ministry encourages them to ask client businesses for a salary or wage rate grid outlining the mini- mum and maximum rates of pay for each job. e amendments prohibit employers, in- cluding temporary help agencies, from retal- iation against employees who request such a review or collaborate with other employees in seeking to determine whether their em- ployer is in compliance. For employees who file complaints with the ministry — whether or not they request a review from their employer — an employ- ment standards officer would be assigned to investigate the situation, as with any poten- tial violation of the ESA. If a contravention is found, the officer can define the amount owing to the employee and deem it to be unpaid wages. Reasons for the amendments e Bill 148 amendments were inspired by e Changing Workplaces Review, a 420- page report commissioned by the provincial government to identify and address defi- ciencies in workplace legislation in Ontario, which has failed to keep pace with the mod- ernized workplace. In respect of the equal-pay-for-equal- work amendments, these were motivated by a need to increase protections for "vulner- able workers in precarious jobs," which the report estimated to be at least 30 per cent of the workforce. In the report, "vulnerable workers" re- ferred to groups defined by their social lo- cation (such as ethnicity, race, sex, ability, age, or immigration status) and it defined "precarious employment" as work for re- muneration characterized by uncertainty, low income, and limited social benefits and statutory entitlements. Of this group, the report found assign- ment employees as "being among the most vulnerable and precariously employed of all workers," which is due in large part due to the triangular relationship of their arrangement. Upon review of the widespread practice of companies paying part-time workers less than full-time employees doing similar work, the report labelled any distinction in pay on this basis as "arbitrary and discrimi- natory," akin to differential treatment based on the protected grounds in the Ontario Hu- man Rights Code. Other provinces While Ontario is the first to introduce such sweeping equal work for equal pay protec- tions, it would not be surprising if other prov- inces were to follow suit in the near future. In British Columbia, a "mandate letter" from the Premier to the Minister of Labour upon his appointment in 2017 stated that one of his deliverables is to "update em- ployment standards to reflect the changing nature of workplaces and ensure they are applied evenly and enforced." is could be viewed as addressing similar pay discrimina- tion issues. In Newfoundland and Labrador, a 2018 report by that province's Federation of Labour called for attention to wage dis- crimination against temporary workers and identified precarious work as a significant is- sue in the province. However, at this time, it appears that other provinces have focused their atten- tion on enhancing their leave provisions, which were part of Ontario's earlier Bill 148 amendments already in force. ABOUT THE AUTHOR DAVID MASTER David J. Master is an associate lawyer working at Littler LLP and advises employers on the full spectrum of employment and labour law issues. He can be reached at (647) 256-4536 or dmaster@littler.com.

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