Fair Workplaces, Better Jobs

Most Ontario employers are now aware of the recent changes to labour laws under Bill 148 - A plan for fair workplaces and better jobs. Some of the changes have already come into effect (for example, the minimum wage was increased to $14 per hour on January 1, 2018) and some will be coming into effect over the course of 2018 and 2019. The next rules to take effect are those that protect against pay discrimination based on employment status, for example, pay differences between temporary and permanent employees who do the same work.

Equal pay for equal work: New Rules in Ontario as of April 1, 2018

Equal pay for equal work has long been the law in Ontario, but it meant an employer may not pay a woman less than a man for the same work (or vice versa). An employer is also not allowed to pay different amounts for the same work if the difference is based on racial, ethnic, religious or other prohibited grounds of discrimination.

Now, as of April 1, 2018, these rules will be expanded to include a prohibition on discrimination on the basis of employment status or assignment employee status (an assignment employee is one who works for a temporary employment agency).

One example of employment status is a seasonal versus full-time employee. A seasonal employee (also applies to a part-time or casual employee) who does equal work to a full-time employee has the right to receive the same pay. This doesn’t mean they will always get the same amount on their pay cheque but the pay rate for both should be the same if they are doing equal work. They may receive different benefits, but this is not prohibited under the new law, so it would be legal for them to have different benefit plans.

“Equal work” means it is substantially the same kind of work, performed in the same establishment, under similar working conditions and requiring the same skills, efforts and responsibilities. The same establishment either means in the same building or, if a business has multiple business locations in the same municipality, that would be considered the same establishment.

A seniority system or merit system may also justify different pay rates. As an example, the Fair Carwash pays a higher pay rate to employees who have worked there for longer than five years. Even though employees Jane and Joe do the same work at the carwash, they legally have different pay rates because Jane has only been working there for one year and Joe has been there for six years.  A merit system might pay one hourly wage to all employees but a higher hourly wage to employees who detailed more than a target number of cars that day or week and this is permitted.

Employers should be careful that if they rely on a seniority system or merit system to justify different pay rates, it should be very transparent and preferably in writing to show they are not hiding a situation where the differences are due to sex discrimination or other prohibited grounds of discrimination.

Exceptions:

Student employees under 18 years old working less than 28 hours per week or working seasonally during the school holidays are not be entitled to the employment status discrimination protection under the new law; however, they are still covered by the older legislation that prohibits pay discrimination based on sex.

For more information:

Coming soon:

In January 2019, changes will apply to the rules governing scheduling of employees and will allow employees to request a schedule or location change once they’ve been employed for three months, without fear of being penalized or to refuse shifts if their employer asks them to work with less than 96 hours’ notice, without fear of retaliation. Employers will also be required to pay wages to employees for three hours of work if the employee regularly works more than three hours a day, shows up for work and works less than three hours or not at all (for example, the shift is cut short) or if the shift is cancelled within 48 hours of their scheduled start time or the employee is scheduled to work but is either not called in to work or works less than three hours.

Stay tuned for more information on the changes to the employment rules on scheduling in upcoming issues.

Please note that this information does not constitute legal advice and a lawyer should be consulted in regard to specific legal questions.