A Detailed Seminar on Bill 168 and the Employment Standards Act. Understanding your Obligations as an Employer

Transcription

1 A Detailed Seminar on Bill 168 and the Employment Standards Act Understanding your Obligations as an Employer

2 Presented by David Mills, Mills & Mills LLP David is proud to represent the fourth generation of Mills to practice at the firm. He is a great-grandson of Alexander Mills, K.C., one of the founders, grandson of Ralph S. Mills, Q.C., and a son of J. Paul Mills, Q.C. David served his articles with Mills & Mills LLP, joined the firm following his call to the Bar and became a partner in David provides a comprehensive range of legal services to meet the needs of entrepreneurs and private businesses. Many of David s clients manage healthcare services businesses, including chiropractors, dentists, midwives, multidisciplinary health clinics, and others. Through careful planning and the implementation of appropriate legal structures and practices, David helps healthcare providers protect their businesses and assets and focus on what they do best take care of their patients.

3 AGENDA 1. Bill 168 (Occupational Health and Safety Act) a. What is it and who does it apply to? b. How does it apply to employers? 2. Employment Standards Act, 2000 a. What is it and who does it apply to? Independent Contractors vs. Employees b. Application of the Act 3. Questions

4 Bill 168 what is it and how does it impact me?

5 Bill 168 What is it? An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters Who does it apply to? Workplaces, workers, supervisors, employers Differences exist depending on the size of the workplace

6 Applying Bill 168 Workplace Violence and Harassment Policy Create a policy respecting workplace violence and harassment What constitutes harassment? What qualifies as workplace violence?

7 Applying Bill 168 Workplace Violence and Harassment Policy Create a policy respecting workplace violence and harassment What constitutes harassment? What qualifies as workplace violence? workplace harassment means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome; Some examples of workplace harassment: Bullying Offensive or intimidating innuendos or jokes Circulating offensive or intimidating pictures

8 Applying Bill 168 Workplace Violence and Harassment Policy Create a policy respecting workplace violence and harassment What constitutes harassment? What qualifies as workplace violence? workplace violence means, (a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, (b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker, (c) a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

9 Applying Bill 168 Workplace Violence and Harassment Policy Create a policy respecting workplace violence and harassment What constitutes harassment? What qualifies as workplace violence? How many regularly employed employees are there in the workplace? Policies shall be in written form and shall be posted at a conspicuous place in the workplace if 6 or more employees are regularly employed If 5 or fewer employees are regularly employed, policies are not required to be in written form and posted at a conspicuous place in the workplace unless an inspector orders otherwise

10 Applying Bill 168 Workplace Violence and Harassment Policy Recognize, assess, control, monitor and evaluate Create a program to implement the policy How can incidents be reported? How will they be investigated? Provide employees with information and instruction on the contents of the policy

11 Applying Bill 168 Consequences of non-compliance An Employee may complain to the Ministry of Labour Risk employee bringing a law suit For example, constructive dismissal Prosecution by the Ministry of Labour monetary fine Damage to reputation

12 Employment Standards Act, 2000 what is it and how does it impact me?

13 Employment Standards Act, 2000 What is it? An Act that sets out employers and employees rights and obligations (i.e. establishes various employment standards) Who does it apply to? Subject to certain exceptions, to an employee and his or her employer if, (a) the employee s work is to be performed in Ontario; or (b) the employee s work is to be performed in Ontario and outside Ontario but the work performed outside Ontario is a continuation of work performed in Ontario.

14 What is the difference between an independent contractor and an employee? An Independent Contractor: Works for him or herself but provides contracted services to you / your business Pays tax based on income from a business Has all the income taxdeductibility options of a business Is not covered by the Employment Standards Act An Employee: Works for you / your business Pays income tax based on employment income Has limited expenses that he or she can deduct from income Generally has rights under the Employment Standards Act and other legislation

15 What is the difference between an independent contractor and an employee? An Independent Contractor may include: another chiropractor, or a massage therapist or other healthcare provider who provides services in your premises who sets his or her own hours, uses his or her own equipment, is largely responsible for his or her own economic fate, is not under your direction An Employee may include: a chiropractor or massage therapist or other healthcare provider who works on the schedule you set or control, is an important part of your practice, may or may not have his or her own patients, uses your equipment, receives a set wage as some or all of compensation receptionist

16 Applying the Employment Standards Act, 2000 Chiropractors are largely exempt from the protections of the Employment Standards Act. Other employees (e.g. receptionist, book-keeper) would be entitled to all protections of the Employment Standards Act.

17 Employment Standards Act, 2000 Standard Minimum Wage Hours of Work Daily Rest Periods Time off Between Shifts Weekly/Bi-Weekly Rest Periods Eating Periods Overtime Personal Emergency Leave Public Holidays Vacation with Pay Notice of Termination/Termination Pay Severance Pay Are Chiropractors Covered? No No No No No No No Special rule applies relating to professional responsibility No No Yes Yes

18 Employment Standards Act, 2000 Standard Minimum Wage Hours of Work Daily Rest Periods Time off Between Shifts Weekly/Bi-Weekly Rest Periods Eating Periods Overtime Personal Emergency Leave Public Holidays Vacation with Pay Notice of Termination/Termination Pay Severance Pay How may other employees be covered? Yes Yes Yes Yes Yes Yes Yes It depends on the size of the employer Yes Yes Yes Yes

19 Employment Standards Act - Wages The Employment Standards Act sets out the manner by which employees must be paid Employers must establish recurring pay periods and recurring pay days As of June 1, 2014, general minimum wage is $11.00/hour and student minimum wage is $10.30/hour

20 Employment Standards Act Wages An Example The general minimum wage applies to David and he is paid on a weekly basis. (Compliance with the minimum wage requirements is based on pay periods.) David works 35 hours this week. Therefore, David must be paid at least $385 (35 hours $11.00 per hour = $385) in this work week, prior to deductions. Note that eating periods are not included when counting how many hours an employee works in a week.

21 Employment Standards Act - Hours of Work Daily limit eight hours in a day or, if the employer establishes a regular work day of more than eight hours for the employee, the number of hours in his or her regular work day Weekly limit 48 hours in a work week Agreement to change the limits Approval from the Director Expiry of Approval

22 Employment Standards Act - Daily Rest Periods and Time off between shifts Daily rest periods at least 11 consecutive hours free from performing work in each day (this does not apply to an employee who is on call and called in during a period in which the employee would not otherwise be expected to perform work for his or her employer ) Time off between shifts at least eight hours free from the performance of work between shifts unless the total time worked on successive shifts does not exceed 13 hours or unless the employer and the employee agree otherwise

23 Employment Standards Act - Weekly / Bi-Weekly Rest Periods An employer shall give an employee a period free from the performance of work equal to, (a) at least 24 consecutive hours in every work week; or (b) at least 48 consecutive hours in every period of two consecutive work weeks.

24 NOTE There is an exception to the requirements regarding daily rest periods, time off between shifts, and weekly/bi-weekly rest periods

25 An employer may require an employee to work more than the maximum number of hours permitted under [the Employment Standards Act] or to work during a period that is required to be free from performing work under [the Employment Standards Act] only as follows, but only so far as is necessary to avoid serious interference with the ordinary working of the employer s establishment or operations: 1. To deal with an emergency. 2. If something unforeseen occurs, to ensure the continued delivery of essential public services, regardless of who delivers those services. 3. If something unforeseen occurs, to ensure that continuous processes or seasonal operations are not interrupted. 4. To carry out urgent repair work to the employer s plant or equipment.

26 Employment Standards Act - Eating Periods An employee shall not be required to work more than 5 consecutive hours without receiving a 30 minute eating period The employer and employee may agree to split this up so that the employee receives 2 eating periods within every consecutive 5 hour period Payment for eating period in which work isn t being performed? Not required unless his or her employment contract requires such payment

27 Employment Standards Act - Overtime Overtime time and a half (1.5 times the employee s regular pay rate) The requirement to pay employees at the overtime pay rate generally begins when an employee has worked 44 hours in a work week Averaging of time Time off in lieu There are exceptions to this requirement for example, with respect to managers and supervisors

28 Employment Standards Act Equal pay for equal work Subject to certain exceptions, [n]o employer shall pay an employee of one sex at a rate of pay less than the rate paid to an employee of the other sex when, (a) they perform substantially the same kind of work in the same establishment; (b) their performance requires substantially the same skill, effort and responsibility; and (c) their work is performed under similar working conditions.

29 Employment Standards Act Benefit Plans The rules can be complex but, generally If a benefit plan is offered, it cannot be discriminatory!

30 Employment Standards Act Pregnancy and Parental Leave Pregnancy leave A pregnant employee is entitled to a leave of absence without pay unless her due date falls fewer than 13 weeks after she commenced employment Begins no earlier than the earlier of 17 weeks before her due date and the day on which she gives birth (provided that such birth is not a still-birth or miscarriage) no later than the earlier of her due date and the day on which she gives birth Ends If entitled to parental leave, 17 weeks after the pregnancy leave began If not entitled to parental leave, the day that is later of 17 weeks after the pregnancy leave began and six weeks after the birth, still-birth or miscarriage

31 Employment Standards Act Pregnancy and Parental Leave Parental leave An employee who has been employed by his or her employer for at least 13 weeks and who is the parent of a child is entitled to a leave of absence without pay following the birth of the child or the coming of the child into the employee s custody, care and control for the first time. Begins no later than 52 weeks after the day the child is born or comes into the employee s custody, care and control for the first time. If pregnancy leave has been taken, the employee must begin her parental leave when her pregnancy leave ends unless the child has not yet come into her custody, care and control for the first time.

32 Employment Standards Act - Personal Emergency Leave Personal emergency leave = an entitlement to take up to 10 days unpaid leave in each calendar year due to illness, injury and certain other emergencies and urgent matters The employer must regularly employ at least 50 employees for employees of that employer to be eligible for personal emergency leave At least 50 regularly employed employees? Consider whether there are multiple locations

33 Employment Standards Act - New types of leave Employees who are subject to the Employment Standards Act may take three new types of unpaid leaves of absence: 1. Family Caregiver Leave (8 weeks) 2. Critically Ill Childcare Leave (37 weeks) 3. Crime-Related Child Death (104 weeks) or Disappearance Leave (52 weeks)

34 Employment Standards Act - Public Holidays New Year's Day Family Day Good Friday Victoria Day Canada Day Labour Day Thanksgiving Day Christmas Day Boxing Day (December 26) Any day prescribed as a public holiday

35 Employment Standards Act - Public Holidays What about Civic Holiday? Paid or unpaid since it does not fall under the Employment Standards Act s definition of a public holiday, you should set out whether it will be paid or unpaid in your employment contracts Consider whether other holidays should be included in your employment contracts

36 Employment Standards Act - Vacation with Pay An employer shall give an employee a vacation of at least two weeks after each vacation entitlement year that he or she completes. Alternative vacation entitlement year An employer shall pay vacation pay to an employee who is entitled to vacation under section 33 or 34 [of the Employment Standards Act] equal to at least 4 per cent of the wages, excluding vacation pay, that the employee earned during the period for which the vacation is given.

37 Employment Standards Act - Notice of Termination / Termination Pay Termination with notice or pay in lieu thereof if employee has been employed continuously for at least 3 months The Employment Standards Act sets out, among other things, what is considered termination, requirements during a notice period and the quantum of termination pay required. Details regarding termination and notice should be included in employment contracts.

38 Employment Standards Act - Notice of Termination / Termination Pay Details regarding termination and notice should be included in employment contracts. If this is not done, then the employee gets the benefit of (the much more generous) common law notice!

39 Employment Standards Act - Notice of Termination / Termination Pay If an employee has been employed for Notice Required Less than 1 year 1 week 1 year or more but less than 3 years 2 weeks 3 years or more but less than4 years 3 weeks 4 years or more but less than 5 years 4 weeks 5 years or more but less than 6 years 5 weeks 6 years or more but less than 7 years 6 weeks 7 years or more but less than 8 years 7 weeks 8 years or more 8 weeks

40 Employment Standards Act - Severance Pay An employer severs the employment of an employee if, (a) the employer dismisses the employee or otherwise refuses or is unable to continue employing the employee; (b) the employer constructively dismisses the employee and the employee resigns from his or her employment in response within a reasonable period; (c) the employer lays the employee off for 35 weeks or more in any period of 52 consecutive weeks; (d) the employer lays the employee off because of a permanent discontinuance of all of the employer s business at an establishment; or (e) the employer gives the employee notice of termination in accordance with section 57 or 58, the employee gives the employer written notice at least two weeks before resigning and the employee s notice of resignation is to take effect during the statutory notice period.

41 Employment Standards Act - Severance Pay Severance pay under this section [of the Employment Standards Act] shall be calculated by multiplying the employee s regular wages for a regular work week by the sum of, (a) the number of years of employment the employee has completed; and (b) the number of months of employment not included in clause (a) that the employee has completed, divided by 12.

42 Employment Standards Act - Resignation How much notice is an employee required to provide under the Employment Standards Act? The Employment Standards Act does not set a standard notice amount for employees who are resigning voluntarily Include this in your employment contracts

43 QUESTIONS

44 Thank you! The information contained in this presentation is of a general nature and cannot be relied upon as legal advice. For legal assistance, contact David Mills at , or david.mills@millsandmills.ca. Blog: millsandmills.ca/blog LinkedIn: Mills & Mills LLP