On February 28, 2022 the Ford government introduced new employment legislation, Bill 88.
This blog discusses three parts of Bill 88; that is, (i) a new law that would apply to gig workers who are currently mostly unregulated, (ii) a requirement that some employers implement a written policy with respect to electronic monitoring of employees, and (iii) increased fines for violations of the Occupational Health & Safety Act.
A new law for gig workers
This law, the Digital Platform Workers’ Rights Act, is targeted at Uber drivers and others who use an app on their phones to get work. A worker is defined as an individual who performs digital platform work.
Digital platform work means the provision of for payment ride share, delivery, courier (or other prescribed services) by workers who are offered work assignments by an operator through the use of digital platform.
There has been much debate and litigation over whether these individuals are employees, dependent contractors or independent contractors and whether a corporation can by contract force a gig worker to have contractual disputes resolved outside Ontario. This law provides gig workers with some rights but not all of the minimum terms of employment that “real” employees are entitled to receive under the Employment Standards Act (the “ESA”).
Under Bill 88 a gig worker is entitled to, among other things, (i) the minimum wage, (ii) the right to notice of removal from the operator’s digital platform (iii) the right to have disputes resolved in Ontario, and (iv) the right to be free from reprisal for enforcing their rights under the new law.
For example, if a gig worker’s access to a digital platform is removed for 24 or more hours then the worker must be given two weeks’ written notice of the removal. This can be contrasted to the notice of termination that “real” employees are entitled to receive which is up to 8 weeks.
A gig worker has no right to vacation pay, statutory holiday pay or to overtime pay. There is no right to take any of the 10 leaves of absences that employees are entitled to take under the Employment Standards Act.
There is a recent decision by an Employment Standards Officer (that is being appealed) which concludes an Uber driver is an employee within the meaning of the ESA. There is also a class action commenced by an Uber driver claiming he is an employee within the meaning of the ESA. If these Uber drivers are successful in these cases then they will be worse off under Bill 88 if the ESA is amended to state that an individual who performs digital platform work is not considered an employee under the ESA.
Mandatory policy addressing employer electronic monitoring of employees
In a 2012 decision, the Supreme Court of Canada concluded, among other things, that Canadians may reasonably expect privacy in the information contained on their work computer at least where personal use is permitted or reasonably expected. Since that time many employers have either (i) introduced a policy telling employers that emails and/or internet use on Company servers are not private and may be monitored or (ii) added a term to the standard employment contract to this effect.
Bill 88, amends the Employment Standards Act, and if passed would require some employers to implement a written policy with respect to electronic monitoring of employees. This policy must indicate whether the employer electronically monitors employees and if so describe how and in what circumstances the employee is electronically monitored and the purposes for which the information obtained is used.
The requirement is similar to the law that requires some employers to introduce a written disconnect from work policy by June 2, 2022; that is, employers with at least 25 employees as of January 1st in a year must have a policy in place by March 1st. There is a transition period if Bill 88 becomes law. (ie. 6 months from the date the law is proclaimed). My guess is that if this law is passed the government won’t devote many resources to educating employers and many employers won’t comply because they are not aware of the law.
Increased fines for a violation of the Occupational Health & Safety Act (OHSA)
Judges rarely impose the maximum fine for violations of OHSA. The current maximum fine for an individual is $ 100 000. Under Bill 88, the maximum fine would be increased to $ 1 500 000 for a director or officer.
I’m not sure why the government wants to increase the maximum fines for individuals. In my experience, individuals are rarely charged (and charges are often dropped if the employer pleads guilty and pays a fine) and I wasn’t aware that the current maximum fine is not a sufficient deterrent for individuals. Having said that I don’t have a problem with the increased maximum fine.
The most significant change to OHSA under Bill 88 for me is an extension of the time that the Ministry of Labour has to bring charges from one year to two years. In my experience, the Ministry of Labour often waits a year before charging. At this point in time it is difficult for an employer to defend the charges because of the passage of time. It will be even more difficult if the Ministry waits two years from the date of an accident to charge an employer.
I do not understand why the Ministry waits so long to charge or why the government thinks the Ministry needs two years to decide whether or not to bring charges. The Ministry of Labour’s investigation into a workplace accident is usually completed within a couple of weeks from the date of a workplace accident. Why does the Ministry need two years to review the results of an investigation and decide whether or not to charge a worker, supervisor, officer, director and/or the employer?
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- Specific penalty clause renders an ESA termination clause unenforceable - September 13, 2022