As you may have heard, last year the Ontario provincial government passed significant changes to the Employment Standards Act, 2000 (the “ESA”). While many of the changes have progressive and employee-friendly intentions, some changes that are unfavourable to employees have been largely swept under the rug. Furthermore, the government opted not to make certain changes that it should have and, in fact, made others that simply make no sense. Below are three examples.
1. Protection for Dependent Contractors
Many of the changes in the ESA were largely in response to the Changing Workplaces Review, which identified areas that were being underserved by existing employment standards legislation.
One such area that the Changing Workplaces Review identified was dependent contractors. Dependent contractors are individuals who fall somewhere between the definition of employee and independent contractor. Specifically, they are contractors that are largely, or exclusively, economically dependent on a single organization. Dependent contractors are not considered employees under the ESA, and as such are not entitled to protections afforded to employees, including for unpaid wages or termination and severance entitlements.
Other employment standards regimes (for example, the Canada Labour Code, which applies to federally regulated employers) do include dependent contractors.
Despite a strong recommendation that the provincial government include dependent contractors in the definition of employee, the government nonetheless elected not to amend the definition. As such, these individuals still lack basic protections that they ought to have.
2. Clarity with respect to sexual assault and violence leave
One new change to the ESA is section 49.7, which provides an employee with a right to leave based on domestic or sexual violence. An employee is entitled to roughly seventeen total weeks, including five paid days of leave, if the employee experiences domestic or sexual violence.
While this is a truly progressive change to the ESA on its face, there are some drafting issues in the section that ought to be clarified:
- Defined purposes: the ESA unnecessarily presumes, and limits, the circumstances in which an employee might need to take leave based on domestic and sexual violence. The ESA sets out limited reasons that an employee is entitled to seek leave, including: to seek medical attention, seek services from a victim support organization, seek legal or law enforcement assistance, participate in a civil or criminal legal proceeding, or to relocate.
Technically, if the reason an employee seeking leave under this section of the act does not fit into one of the listed categories, he or she is not entitled to leave under this section. This is unfortunate, because it is easy to predict other circumstances in which someone could benefit from this leave. For example, it is not clear that an employee who simply needs time off work to emotionally process the impact of the domestic or sexual violence would be entitled to leave.
- Evidentiary requirements: the ESA requires an employee to produce evidence “reasonable in the circumstances” to justify the leave. There is no definition of what is reasonable in the circumstances, which could be problematic. For example, is the definition of “reasonable” considered from the perspective of the strong privacy entitlement to which an employee who experiences domestic or sexual violence should be subject? Or is it from the employer’s perspective, which may demand significant evidence prior to providing an employee with five paid days of leave?
- Disclosure of records: the ESA also does not provide strong protection of an employee’s right to confidentiality with respect to the evidence he or she discloses to the employer to justify the leave. Specifically, while the ESA requires an employer to put in place mechanisms to preserve confidentiality, there are exceptions. The employer can provide its records to any “officer, employee, consultant or agent of the employer who needs the record in performance of their duties.” It is not clear under which circumstances the information would be required to perform duties.
Additionally, an employer is required to disclose the records as is “authorized or required by law.” In other words, if a party obtained a summons for the employer to produce the records, it would be obligated to do so.
Such a requirement could be problematic, because an employee may not want to disclose all details about the violence they experienced to his or her employer. However, these records could be sought by an adverse party in a civil or criminal trial, and potentially used to undermine the employee’s credibility about the violence they experienced.
As such, this section should have made the evidentiary requirements clearer, and very limited.
3. What is a recognition anyways?
OK – so this is a weird one. There is a new section of the ESA that seems to have no purpose. It is called “Recognitions for employers” and contains no details about what it might be. Neither does the explanatory note to Bill 148 that amended the ESA, which simply says:
New sections 88.2 and 88.3 allow the Director to provide recognition of employers that meet prescribed criteria.
I have looked in all the publications the Ontario government has released about the changes, reviewed every ESA regulation, annoyed all my colleagues asking questions about this, had an articling student call the Ministry of Labour, and ctrl+f’d through months of transcripts of legislature debates and cannot find a single mention of a “recognition”. The Ministry of Labour indicated to us that this section enables the Director to give a formal acknowledgment to employers who have a high rate of compliance with the ESA or who demonstrate exceptional performance in accordance with the “prescribed criteria.” However, it also indicated that, at present, there are no prescribed criteria upon which to base such a recognition.
Although it is not clear whether this section may create further recognitions that an employer is exempt from certain employment standards or fits into a certain category of employer, it does at the very least appear that this section will be further defined by future regulations. It may provide a way for an employer feeling a little down on itself to get a kudos from the Ministry to lift its spirits.
All I know is I have taken this research as far as I can, and still have no clear idea what it does, but feel that maybe I will apply, pursuant to section 88.1, to get a little recognition for my efforts.
For more information about these changes to the ESA, contact our Employment Law Group.