Legal Words

... AND MORE ESA COMPLAINTS

By Jason Beeho

Although not yet in force at the time of this writing, the Fair Workplaces, Better Jobs Act, 2017, otherwise known as Bill 148, will bring major changes to both the Employment Standards Act, 2000 (ESA) and the Labour Relations Act when it inevitably becomes the law-of-the-land.

The bill was significantly amended in August of this year, and it may yet be subject to further revision; however, it is clear that the upcoming legislative changes will be considerably more favourable to employees than employers. Indeed, despite a consultation process that involved input from employers and employer organizations, the August amendments seem to largely ignore the recommendations and requests put forward by the employer community.

In addition to the much-publicized (and much-criticized) increases to the minimum wage, employers’ new obligations under the ESA will almost certainly also include the following, among others:

  1. Equal pay for equal work (amendments contemplated for April 1, 2018)
    The basic principle here is that – subject to wage differentials based on merit, seniority and other objectively justifiable criteria – employers must apply the same pay scale to all employees who perform a particular job. In other words, a worker employed on a part-time, temporary, seasonal or casual basis must be paid on the same scale as his or her counterparts who perform the same job on a full-time basis.
    Further to those requirements, employees will have the right to request a review of their wages; and, where a differential is identified, employers will have a corresponding obligation to either justify or correct the differential. Moreover, the amendments will provide employees who make such requests with protection against reprisal.
  2. Scheduling rules (amendments contemplated for January 1, 2019)
    Bill 148 contemplates numerous changes to the ESA provisions dealing with on-call employees and minimum call-in pay; and it also provides employees with a new right to request changes to their schedule and/or work location – again, accompanied by protection against reprisal.
  3. Minimum vacation entitlements (amendments contemplated for January 1, 2018)
    Under Bill 148, an employee’s minimum statutory vacation entitlement will increase from two weeks to three weeks upon his or her completion of five years of service.
  4. Leaves of absence (amendments contemplated for January 1, 2018)
    The Bill 148 amendments will increase the duration of parental leave by 26 weeks – i.e., from 35 weeks to 61 weeks for employees who also take pregnancy leave, and from 37 weeks to 63 weeks for employees who do not.

In addition, Bill 148 will:

  • Boost the family medical leave entitlement from eight weeks per 26 week period to 27 weeks per 52 week period; and
  • Significantly enhance employees’ rights to personal emergency leave – in particular, by stipulating that two days of the annual 10-day entitlement be paid days, and by prohibiting employers from insisting that employees provide medical documentation to substantiate personal emergency leave taken for medical reasons.

In addition to introducing those new obligations – which many organizations (and particularly small businesses) can ill-afford – Bill 148 will increase the maximum administrative penalties that can be imposed for violations of the ESA.

Moreover, the Ministry of Labour has announced an intention to hire almost 200 additional employment standards officers; and there is good reason to believe that those officers will be kept very busy not only with education and enforcement initiatives in relation to the Bill 148 amendments, but also with a substantially increased volume of ESA complaints.

In that regard, a number of the new provisions will – unfortunately – be ripe for abuse by employees. Consider, for example, the following:

  • Section 74(1) of the ESA already stipulates that:
    No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,
  1. Because the employee
    (i) asks the employer to comply with this Act and the regulations,
    (ii) makes inquiries about his or her rights under this Act,
    (iii) files a complaint with the Ministry under this Act,
    (iv) exercises or attempts to exercise a right under this Act …

 

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And section 74(2) of the ESA goes on to provide that “the burden of proof that an employer did not contravene a provision set out in this section lies upon the employer.” In other words, when faced with an allegation of reprisal, an employer is guilty until proven innocent.

Upon the Bill 148 amendments coming into force, an underperforming employee (or indeed any employee who feels that his or her job might be at risk) will be able to demand a wage review or request a scheduling change in order to “turn the tables” on his or her employer – i.e., he or she will thereby create a situation wherein, if the employer follows through on an intended dismissal or performance management initiative, the employee can bring a reprisal complaint and the organization will be (a) presumed to have engaged in reprisal against the employee, and (b) obliged to demonstrate the bona fides of its actions.

There is good reason for employers to be even more cynical vis-à-vis the proposed amendments to the personal emergency leave provisions. In that regard, many organizations already face challenges in regard to employee abuse of sick days; and Bill 148 will strip employers of an important tool that has traditionally been available to help manage those challenges – i.e., the prerogative to insist that employees provide medical documentation to substantiate their purported medical absences.

Indeed, employers will not only lose the ability to insist upon medical documentation in support of any absence that falls within an employee’s 10 days of personal emergency leave, they may also find themselves exposed to claims of reprisal by employees who are asked to provide medical documentation (which will still be permitted) but decline to provide it (as will be their right under the Bill 148 amendments), and who are – for example – subsequently dismissed or performance-managed. Again, the employee who brings a reprisal complaint will create a situation in which the employer is (a) presumed to have engaged in reprisal, and (b) obliged to demonstrate the bona fides of its actions.

Although the reality is of course that most employees are dedicated and hardworking (and not predisposed towards advancing unmeritorious reprisal complaints), there is nonetheless no shortage of employees willing to “game the system.” And, unfortunately, the Bill 148 amendments will represent a gift for that latter minority.

Employers should therefore prepare not only for their new compliance obligations, but also for more employment standards complaints.

By extension, that means that organizations will need to think more defensively, and consider opportunities to pre-empt or deflect complaints. For example, one of the most effective proactive strategies that an employer can adopt is a diligent process of written performance reviews, performance management and progressive discipline. In that regard, a well-papered personnel file that memorializes an employee’s performance and/or disciplinary issues (versus a poorly documented history of any such issues) can be of tremendous assistance to an employer in rebutting allegations that a subsequent termination or corrective action is in the nature of a reprisal or otherwise illegitimate.

Unfortunately, however, no amount of preparation will permit employers to avoid the significant economic costs that will follow the enactment of Bill 148, nor the opportunities for abuse that will be open to employees under the new provisions.

Well-intentioned or not, Bill 148 seems very likely to present an object lesson on the law of unintended consequences.

Jason Beeho is a partner at Levitt LLP and a member of the HR Professional Editorial Advisory Board. For more information on Bill 148, turn to our in-depth cover story on page 22.