1. Bill 148 – “A Plan for Fair Workplaces and Better Jobs”

Bill 148 has made a number of changes to both the Employment Standards Act, 2000 and the Labour Relations Act, 1995. The Bill was passed on November 22, 2017.
One of the significant changes is referred to as “equal pay for equal work.”

2. Equal Pay for Equal Work:

Under the Employment Standards Act, when two employees perform substantially the same kind of work (similar work conditions, skills, and responsibility), an employer CANNOT pay one them less than the other on the grounds of:

i) Sex; and/or
ii) Employment.

3. Difference in Rate of Pay:

A difference in rate of pay is a difference in:

1. Hourly rate;
2. Salary;
3. Overtime rate; and/or
4. Commission rate.

4. Similar Work Conditions:

Similar work conditions include a similar:

i) Work environment (office or outdoors);
ii) Exposure to Weather (rain/snow; or
iii) Health and Safety Hazards (chemicals/heights).

5. Similar Skills:

Similar skills refer to the knowledge, physical skills, and motor skills needed to perform a job. Examples include:

i) Education;
ii) Training;
iii) Experience; and/or
iv) Manual dexterity.

Similar responsibilities refer to the employee’s accountability and authority needed to perform his or her job. Examples include:

i) The number of decisions that he/she needs to make;
ii) Being accountable for the safety of other staff members;
iii) Acting in a supervisory capacity; and
iv) Being responsible for money;

7. Example:

Sam and Joe work as full-time Construction Laborers for Construction Co. in Timmins, Ontario. Joe started working for Construction Co. in 2007, and Sam started working for Construction Co. in 2016.
Both Sam and Joe have a Building Construction Technician Diploma from Canadore College. They are both responsible for blueprint reading, estimating residential structures, and wood framing.
While Sam and Joe perform the same work, work in the same establishment, use the same skills to perform their job, and have substantially the same responsibilities, Joe makes two times per hour what Sam makes.
Does this constitute a violation of equal pay for equal work under the Employment Standards Act?

8. Answer

In this case, the difference in rate of pay for substantially the same job is due to the seniority system. Joe has worked for Construction Co. since 2007, whereas Sam only started working for Construction Co. in 2016. As such, there is no violation of equal pay for equal work under the Employment Standards Act.

9. Suzanne Desrosiers Professional Corporation:

For assistance in updating your employment policies and procedures and/or providing training to staff members, please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or 705-268-6492.

If Bill 148 passes, it will come into effect on January 1st, 2018. All labor relations will be in effect six months after that date.

3. Proposed Changes:
Notable changes to Bill 148 include changes to:
1. Minimum wage,
2. Equal pay for equal work,
3. Overtime pay,
4. Scheduling,
5. Vacation and public holidays,
6. Personal emergency leave,
7. Family medical leave, and
8. Child death leave and crime related disappearance leave.

5. Equal Pay for Equal Work:

Bill 148 will require that casual, part-time, temporary, seasonal, or temporary help agency employees are paid the same amount as full-time employees that perform the same job.
If a part-time employee believes that they are not receiving the same wage as a full-time employee, they will be able to request a review of their wages, without fear of reprisal. The employer will then have to respond to that request with either:
1. An adjustment in pay or,
2. A written explanation as to why their wage is not changing.
Exceptions to the requirement for equal wages are based on:
1. The seniority system,
2. The merit system, and/or
3. Systems that determine pay by quality or production,
In other words, if at your restaurant you have a waitress that has been in your employment for twenty plus years, and another waitress that has been in your employment for five years, they do NOT need to be paid the same hourly wage.

7. Scheduling:
Bill 148 calls for employers to pay their employees a minimum of three hours if:
1. The employee has worked under three hours,
2. The employee was on call, or
3. The employee’s shift was cut short, or cancelled without 48 hours’ notice.
Bill 148 will also ensures that:
1. Employees have the right to request changes to their schedule after three months of employment without fear of repercussions, and
2. Employees can refuse to accept shifts without fear of reprisal if their employer asks them to work with less than four days’ notice.
So, in your business, if you schedule a waitress to work for a dinner shift, and they only end up working for one hour because it is not busy that night, you will be required to pay them for a minimum of three hours work.

9. Personal Emergency Leave:
Under Bill 148, employees will be entitled to ten days personal emergency leave. Two of those days will be paid, and eight days will be unpaid. The two paid days must be granted before the eight unpaid days.
Moreover, employers are no longer able to request that an employee to provide them with a medical note.

11. Child Death Leave and Crime Related Disappearance Leave:
Under Bill 148, if an employee’s child passes away, or disappears, they will be entitled to at least six months of unpaid leave.
If the employee is charged with the death or disappearance of that child, they will be unable to take this type of leave.

13. Recommendations:

Employers, please be SURE to:
1. Plan ahead,
2. Revisit and update employment contracts, policies, and procedures,
3. Prepare training ahead of time for all staff members,
4. Consider how you may be exposing yourself to potential claims and take action accordingly, and
5. Review the budget for increased expenses in:
a. Paid vacation,
b. Equal pay for equal work, and
c. Overtime pay.

Premiere Kathleen Wynne has stated that as it stands, many Ontario families are having a difficult time living off of part-time and/or contract employment. Bill 148 is designed to allow Canadian families to reach their full financial potential.

4. Minimum Wage:
Ontario is increasing its general minimum wage to fourteen dollars an hour on January 1st, 2018, and fifteen dollars and hour on January 1st, 2019.
Exceptions to the increase in minimum wage include:
1. Liquor servers,
2. Students under the age of eighteen,
3. Hunting and fishing guides, and
4. Homeworkers.
Therefore, as some of your employees are likely liquor servers, this increase in minimum wage will NOT apply to them. However, it is important to keep in mind that liquor servers will continue to receive the same percentage increases as the general minimum wage.

6. Overtime Pay:
Where an employer has an employee that wears a number of different hats, the rate of pay for each job title will differ.
Moreover, the hours that the employee has worked in both jobs will be counted towards the employee’s total weekly hours with respect to overtime.
For example, if, at your restaurant, you have an employee that has worked twenty-five hours waitressing, and thirty-five hours in the kitchen in one week, that employee will be entitled to overtime pay based on the combined hours of BOTH jobs.

8. Vacation and Public Holidays:

Bill 148 will ensure that employees have three weeks of paid vacation after five years of service with the same employer. It is important to note that employees are entitled to their average regular daily wage when taking vacation.

10. Family Medical Leave:

Family Medical Leave will allow employees to provide care or support to a family member that has:
1. A serious medical condition, or
2. Is at risk of death.
Employees will be able to take twenty-seven weeks of unpaid leave in a fifty-two-week period.

12. Penalties for Non-Compliance:
If employers are non-compliant with Bill 148 once it comes into effect, they may be liable to pay a fine between $350 and $1,500.
The proposed changes will allow the Director of Employment Standards to publish:
1. The names of the individuals who have been issued a penalty,
2. The description of the contravention,
3. The date of the contravention, and
4. The amount of the penalty.
This type of negative publicity could deter well-qualified individuals from applying at your place of business, and could discourage customers from visiting your restaurant.

14. Suzanne Desrosiers Professional Corporation:
For assistance in updating your employment contracts, policies, and procedures and/or providing training to staff members, please contact Suzanne Desrosiers today, at suzanne@sdlawtimmins.com or 705-268-6492.