The Ontario government’s second Working For Workers Act, 2022 was passed on April 7, 2022 and will take effect on the later of July 1, 2022 or the date the legislation receives Royal Assent.
The Working For Workers Act, 2022 creates the Digital Platform Workers’ Rights Act, 2022 (“DPWR”) and makes amendments to the Employment Standards Act, 2000 (“ESA”) and the Occupational Health and Safety Act (“OHS”).
The DPWR is stand alone legislation that creates rights for those individuals employed through digital platforms. This would encompass ride share, courier, delivery and other work that is offered to the worker through the use of a digital platform (think Uber, DoorDash, etc).
The DPWR provides various rights including a minimum wage, a recurring pay period and pay day as well as earned amounts and tips (limiting the operator from withholding or deducting from these).
In one amendment, the legislature has chosen to specifically indicate that ‘business consultants’ and ‘information technology consultants’ are exempt from the application of the ESA.
These two categories will be exempt if they provide their services through a corporation in which they are a director or shareholder (through a unanimous shareholder agreement), or they are operating as a sole proprietorship in which they are the sole proprietor (registered under the Business Names Act) and there is a written agreement setting out, in part, (i) when the consultant will be paid; and (ii)the minimum hourly rate of $60 (excluding bonuses, commissions, expenses and travelling allowances, benefits and any other prescribed amounts). The agreement must express the payment as an hourly rate .
The upshot appears to be the Ontario government has sought to severely limit the circumstances as to when a business consultant or an information technology consultant can be considered to be an independent contractor and therefore outside the application of the ESA. A failure to meet all the requirements noted above including the $60 per hour rate would appear to prevent the establishment of an independent contractual relationship from an ESA perspective.
Written Policy on Electronic Monitoring
Another significant addition to the ESA is the requirement that employers with 25 or more employees on January 1 of any year have a written policy in place with respect to electronic monitoring of employees.
The Policy must contain:
- Whether the employer electronically monitors employees and if so, (i) a description of how and in what circumstances the employer may electronically monitor employees, and (ii) the purposes for which information obtained through electronic monitoring may be used by the employer.
- The date the policy was prepared and of any changes to the policy.
- Such other information as may be prescribed.
Employers must provide every employee a copy of the policy within 30 days from the date the employer is required to have the policy in place. The policy must be provided to new employees within 30 days of hire or within 30 days from the date the employer is required to have the policy in place, whichever is later. Currently, the effective date for a policy to be in place is six months following Royal Assent (not yet received).
The amendment does not define what electronic monitoring means or encompasses, or what may or may not be exempted at this time. It is anticipated that Regulations will clarify this.
OHS Very significant, one might even say extreme, changes have been made to the fines/penalties that apply to corporations, directors and individuals under the OHS.
Fines for individuals jump from $100,000 to $500,000 and up to 12 months in jail.
Fines for directors and officers of a corporation jump from $100,000 to $1,500,000 and up to 12 months in jail.
These are staggering increases and apply per offense. That said, historically fines have not reached anything approaching this level – but this may signal a change in approach.
We will update you further when we know more and are happy to work with you to ensure you remain compliant in this ever-changing workplace landscape. Please do not hesitate to reach out to speak with an e2r™ Advisor with any questions.