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The law as it relates to employment contracts has evolved substantially over the course of the past few years. A termination clause in an employment contract that was enforceable two years ago is likely not enforceable today. What that means is if you want to terminate an employee the termination pay and severance pay will not be limited to the Employment Standards Act but rather the common law. To give you an example of the difference between the ESA and the common law is as follows:
Let’s use the example that you want to terminate an employee without just cause a middle manager of 55 years old who has worked for your organization for 15 years the cost to you to terminate this employee under the ESA with an enforceable termination clause in your employment contract would be 8 weeks plus benefits. If the termination clause in the employment contract is not enforceable the cost to terminate this same employee, you will likely be somewhere between 12 and 15 months’ pay in lieu of notice. That is a substantial cost between an enforceable employment contract and one that is not enforceable.
Bill 148: “Fair Workplaces, Better Jobs Act”
Question: I own a pub and family restaurant in Timmins, Ontario, and am concerned about the impact that Bill 148 will have on my business. When will Bill 148 come into effect, and how will it impact my restaurant?
1. Enforcement:
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.
2. Government Rationale for Bill 148:
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.
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.