Home Business amount Other Ontario Updates: Bill 88 Receives Royal Assent, Minimum Wage Will Increase October 1, 2022 | Stikeman Elliott LLP

Other Ontario Updates: Bill 88 Receives Royal Assent, Minimum Wage Will Increase October 1, 2022 | Stikeman Elliott LLP

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On April 11, 2022, the Government of Ontario’s Bill 88, the Labor for Workers Act 2022 (“Bill 88”), received Royal Assent. Earlier this year we wrote about Law 88 on this blog, while still in second reading. In addition to modifying the Employment Standards Act 2000 (the “ESA”) to require employers to put in place a written policy regarding electronic monitoring, Bill 88 introduces new penalties under Ontario law Occupational Health and Safety Act (“LSST”) and enacts new legislation called the Digital Platforms Workers Rights Act 2022 (the “Digital Law”) to provide certain rights and minimum entitlements to workers in the gig economy, among other changes.

Below is a summary of the key provisions introduced by Bill 88, as well as an update on the upcoming minimum wage rate increase.

Minimum wage rate:

The Ontario government has announcement that effective October 1, 2022, the general minimum wage rate will increase from $15 per hour to $15.50. Special minimum wage rates will also increase, as detailed in the announcement.

Written policy on electronic monitoring

Pursuant to Bill 88, the ESA was amended to require Ontario employers with 25 or more workers as of January 1 of each year to put in place a written policy regarding electronic employee monitoring by March 1 of that year. (a politic “).

The Policy must contain the following information:

  • whether the employer electronically monitors employees and, if so, a description of how and under what circumstances the employer may electronically monitor employees, and the purposes for which information obtained through electronic monitoring may be used by the employer;
  • the date the policy was prepared and the date any changes were made to the policy; and
  • any other prescribed information (please note that there are no regulations yet regarding Bill 88).

Particularly for employers, Bill 88 clarifies that the new electronic monitoring policy provisions do not affect or limit an employer’s ability to utilize information obtained through electronic monitoring of their employees.

On a transitional basis, employers with 25 or more employees in January 2022 have until October 11, 2022 to implement their policy.

A copy of the policy must be provided to employees within 30 days of the day the employer is required to put the policy in place or, if an existing policy is changed, within 30 days of the changes being made. New employees must receive the policy within 30 days of their start date (or, if later, 30 days from the day the employer is required to have a policy in place). The policy must be kept for 3 years after it ceases to be in force.

Next steps:

Employers should begin to review their electronic monitoring practices and be prepared to develop a written policy that meets the requirements outlined above. Although the relevant ESA amendments do not define “electronic monitoring”, organizational monitoring methods such as keystroke tracking, GPS devices and monitoring of corporate mobile devices should be considered when preparation of the appropriate policy. We will continue to monitor any regulations or guidelines establishing our additional requirements for electronic monitoring policies and will provide updates as they become available. For more information on electronic monitoring policies, please also see our previous blog post.

Certain business and IT consultants not subject to the ESA

Bill 88 amends section 3 of the ESA to specify that as of January 1, 2023, the ESA will not apply to certain business and information technology consultants, defined in the legislation as follows (each, a “Consultant”):

  • business consultant” means a person who provides advice or services to a business or organization with respect to its performance, including advice or services with respect to operations, profitability, management, structure, processes, finances , accounting, purchasing, human resources, environmental impacts, marketing, risk management, compliance or corporate or organizational strategy; and
  • information technology consultant“means a person who provides advice or services to a business or organization with respect to its information technology systems, including advice or services relating to planning, design, analysis, documentation, configuration, development, testing and installation of corporate or organizational information technology systems.

To be exempt from ESA, a consultant must meet the following criteria:

  1. provide services through (i) a company of which he is a director or shareholder party to a unanimous shareholders’ agreement or (ii) a sole proprietorship of which the consultant is the sole owner;
  1. be subject to a service agreement that specifies when the consultant will be paid and the amount they will receive, which must be greater than $60 per hour (excluding bonuses, commissions, expenses and travel allowances and benefits) and must be expressed as an hourly rate; and
  1. be paid the amount stated in the agreement above.

Further requirements may be prescribed in the future and as such we continue to monitor regulations and/or guidance.

Next steps:

Employers will need to be vigilant when hiring business and IT consultants as independent contractors to ensure they meet the criteria set out in the ESA. Failure to do so may result in liability for misclassification under the ESA. Employers should also ensure that any future independent contractor agreement for business and IT consultants (including all models) will establish a payment schedule and provide for payment of an hourly rate of at least less $60 per hour as described above.

Protections for Workers in Response to Opioid Use

Bill 88 amends OHSA to require employers to provide naloxone kits if they become aware, or reasonably ought to know, that there may be a risk of a worker experiencing an opioid overdose at a location workplace where that worker works for the employer. In these circumstances (and any other circumstances that may be prescribed in the future), the employer must also comply with requirements regarding training and the use and maintenance of naloxone kits. These amendments to the OHSA are not yet in force and will come into force on a date to be proclaimed.

Naloxone is an opioid antidote which, if given in response to an opioid overdose, can reverse the overdose.

Next steps:

The Ontario government has construction sites, bars and nightclubs identified such as the high-risk settings that are most affected by the opioid epidemic. Employers in these sectors should be especially aware of this high risk, monitor their workforce for any signs of opiate addiction, and be prepared to have naloxone kits and training in place when needed.

Increased penalties under the OHSA

Effective July 1, 2022, penalties for OHSA convictions will increase significantly as a result of Bill 88. Specifically:

  • the maximum fine under the OHSA for those who violate or fail to comply with the law has been increased from $100,000 to $500,000; and
  • a new sanction is provided for directors and officers who contravene or fail to comply with their obligation to take reasonable precautions to ensure that the company complies with the OHSA. Directors and officers who violate this requirement are now liable to a fine of up to $1,500,000, imprisonment for up to 12 months, or both.

The OHSA now also includes a list of aggravating factors that must be considered by the Ministry of Labor when determining a penalty, including, for example, whether the person ignored an inspector’s order, a history of OHSA non-compliance or the violation was reckless, resulted in the death or serious injury of a worker, or was motivated by a desire to increase revenue or reduce costs. Post-violation behavior may also be considered, such as whether the individual attempts to conceal the violation from the Department of Labor or fails to cooperate with an investigation.

The statute of limitations for laying charges under the OHSA has been extended from one to two years from the date of the order.

Next steps:

Going forward, directors and officers of a company, as well as managers and supervisors, should continue to ensure that their training is current and up-to-date so that they can demonstrate that they know the policies workplace health and safety (e.g. workplace violence and harassment policy and related programs).

Digital Platforms Workers Rights Act 2022: new rights for gig workers

The new digital law was created to give rights to workers who perform work on a digital platform. Individuals in this industry are generally engaged as independent contractors and, when characterized as such, do not benefit from the rights and protections granted to employees under the ESA. The law aims to establish minimum rights for these workers.

Work on a digital platform is defined under the Act as “the provision of ride-sharing, delivery, courier or other services prescribed by workers who are offered work assignments by an operator through the use of a digital platform”, commonly referred to as “work on demand”. .”

New rights for gig workers established under the law include right to information, recurring pay periods and pay days, minimum wage payable under the ESA, notice of termination of a digital platform (along with an explanation of why) and the right to resolve work-related disputes and freedom from retaliation (among other things).

The law will come into force on a date to be set by the Lieutenant Governor (meaning it is not yet in force).

Next steps:

Businesses that hire workers who perform work on digital platforms should familiarize themselves with the rights created under the Act, as well as the relevant rules, processes and requirements set out therein with respect to record keeping. and the app.