Employment and Labour Law Blog: Changes to the Employment Standards Act - Employers Beware


I was having lunch with my Law golf buddy last week since we couldn’t golf anymore. We had a conversation which I think you might find helpful, so I wrote it down.

Employment Standards

“I was speaking to members of the CPIO, the Council of Professional Investigator’s of Ontario. They wanted to know about the changes to the Employment Standards Act.”

“I thought that was just Liberal politics, promises for the election trails?”

“Not any more, it passed third reading and Royal Assent was given November 27! The changes are upon us.”

“So, this is just about increasing the minimum wage, right? One jump to $14.00 on January 1, 2018 before the election and another promised increase to $1,500 for the beginning of 2019, after the vote.“

Personal Emergency Leave

“No, no. There are some other important changes. For example, personal emergency leave: all employers must grant 2 days of paid time off to all employees with more than one week of service. This leave never provided paid time before and only applied to companies employing 50 or more employees. Now, all employers must pay for two days each year. The rules have been in place to allow 10 of these days a year as unpaid. The difference now will be that the first two must be paid.”

“You mean for anything the employee wants?”

“No. There are conditions respecting urgent matters like personal illness, injury or medical emergency. However, the leave can be taken for a broad range of family members.”

“Well, employers will be able to require medical certificates to ensure the time off is justified, right?”

“No. No doctor’s notes required. Employers can ask for reasonable proof but they cannot insist on a medical note.”

“Well, what’s to stop every employee from taking advantage?”

“Employers will need to monitor their employees and require some explanations which can be checked out. If a pattern develops, they should be able to take steps to stop potential abuse.  Of course, the employer will need to investigate all the reasons for the absence.”

“Well, if they are increasing time off by 2 days, and they are hiking the minimum wage, are there any other increases?”

Vacation Pay

“Yes. The vacation pay for employees with more than five years of continuous service is being increased by 2% of pay to 3 weeks per year. Like before, that time needs to be taken in the ten months after the year in which it is earned. Three choices: one period of three weeks, or a two - one combination or three single weeks.”

“Anything else?”

Part-Time Holiday Pay

“Yes. The holiday pay calculation for part time employees is being improved so they will be paid for their normal regular day of work not just a percentage based on full time hours.”

“Why are they doing that?”

“It is part of the plan to ensure that part time and temporary workers doing substantially the same work as full timers are paid an equivalent wage. “

Temporary Employee

“What is all the fuss about temporary employees? Is this from the exposure created by the Toronto Star articles?”

“I do not think the Government made changes to respond to newspaper stories! However, there have been a lot of employers using temporary and contract workers at lower rates to work on straightforward jobs along side full timers. Often, these persons do not become employees of the operating employer, they remain the responsibility of the supplier even though their work is supervised by the operator not the supplier. Under the new legislation these workers will be called “assignment employees”.  Their pay level will be protected. Termination pay will be required if a contract of more than 3 months is terminated early. “

“How will pay levels be protected?”

“The new law will prohibit the temporary employee supplier from paying its employee at a rate less than the full-time employee, when they both perform substantially the same work in the same location using similar skill, effort and responsibility.” 

“What happens if the temporary employee has been working at the same job with the same employer for several years and claims the real employer is not the supplier but the operating employer? “

“There is a new requirement that will force the operating company to prove it is not the employer. 

“These are steps to provide more job security to temporary employees, right?”

Labour Relations Act – Employee Lists

“Yes. These changes go along with amendments to the Labour Relations Act to make it easier for temporary workers to unionize. It starts with a new law that applies to all situations. If an organizing union can secure support from 20% or more of the proposed bargaining unit, they can ask the Labour Board to order the target employer to provide names and contact info for all employees!”

“Wow! That will make union organizing a lot simpler!”

Labour Relations Act – Automatic Certification

“There is more! If a union in the temporary help agency field or in home or community care or building services chooses, once it has enough membership cards, it can go for automatic certification. No vote.”

“How will that work?”

“Just like the old days, when a union could ask for automatic certification by presenting of membership cards for more than 55% of the proposed bargaining unit.  Under this regime, if the union can get employees to sign, there will be no opportunity for the employer to persuade the employees to reconsider.  “Employers will need to be much more alert to union activity.  A strong, regular employee communication plan should be implemented since once an employee signs a union card, it is hard to take it back.”

“These changes could mean there will be a lot more organizing activity in the designated sectors, home and community care, building services and temporary assignment workers.”

Extended Leaves

“Yes, I think so too.  But, the funny thing is the other employment standards changes involve stand by, and call back pay shift changes and more extended leave protections. These are all things you normally find in collective agreements. For example, the length of parental leave has been almost doubled. Other leaves have been enhanced. Those are the kinds of adjustments you might see at the bargaining table. In fact, the new legislation even stipulates that existing collective agreement language for stand by pay and call back pay in place on January 1, 2019 prevails until 2020 unless the agreement comes up for renewal.”

“The way you describe it, the amendments sound as if the Legislature is turning the Employment Standards Act into a collective agreement for the non-unionized. The enforcement officers are like union stewards!”

“If that is the case, a number of employers have brought these changes on themselves by not respecting the existing legislation. Historically, amendments are caused or justified by examples of bad employer practices.”

“What do you mean by that?”

Stand By Pay and Call Back Pay

“Take the new rules about stand by pay and call back pay. There is now a law that requires a minimum of 3 hours of pay for every employee placed on stand by to be available for call back outside their normal hours of work. It applies even if the employee is not called back to work.  It will not apply to employees placed on call for the purpose of ensuring the continued delivery of essential public services. “

“But, how is minimum on call pay going to stop employers scheduling at the last moment on short notice?”

“The drafters thought of that problem. Unless there is an emergency, employers will be required to schedule employees at least 96 hours or 4 days in advance or the employee can refuse the stand by.  This addresses situations where employers have ordered employees to work on very short notice.  Now, the employee can refuse.”

“Does that mean employers will claim everything is an emergency so they can give short notice and avoid advance planning?”

 “No. Only in defined types of emergencies will short notice be permitted.  There is a definition of emergency covering a danger of major proportions that could cause serious harm to people or property created by nature, disease or accident.”

“That means the new scheduling norm for all stand by will be 96 hours. Once scheduled, can the employer cancel or do they always pay if they schedule?”

“No, employers can cancel without a consequence provided they give the employee at least two days of notice. This remedies the other complaint many had that employers cancelled shifts at the last moment without any pay.”

“That means payment has to be made if the employer cancels the stand by without giving at least 48 hours notice.”

“Right. If the employer is organized enough to schedule the employee for stand by at least four days in advance, the employee cannot refuse. And, if the employer cancels at least two days before the scheduled stand by, it will be ok.”

“All this means employers are going to have to plan farther in advance and tell employees sooner when they need them for stand by or they decide to cancel them. Are there any other scheduling changes?”

“Actually, there is another one! “

“And what could that be?”

Requests for shift and location changes

“If an employee has completed the three month probationary period, he or she can demand that the employer consider a change in shift or work location and the employer must consider the request.”

“You are not saying employees get to choose their hours and their work sites? “

“The legislation does not go that far. It requires that employees listen and respond within a reasonable time. If they answer ‘no’, reasons must be given. If the answer is positive a specific date for movement must be set.”

“What you have told me must be enough. There are lots of changes!”

“One more is pretty important for people in building services.”


Labour Relations Act – Successor Employer – Building Services

“The Labour Relations Act has been amended to provide that companies which take over unionized contracts for building services are deemed to be successor employers. This will mean that union contracts will continue in place and existing employees may not be displaced. It clears up a murky legal situation.”

“I guess clarity is worthwhile.”

“At least employers should understand their minimum statutory obligations more clearly.”

“Provided they read the Act.”

“Or call you!”

“Yes, they can do that. Dunsmore Law at your service: 416 364 7515. Enjoy your day!”