Employment Law Updates for 2014

The employment law landscape is expected to change over a number of key issues through 2014. Some of these changes provincially in Ontario follow changes initiated at the Federal level.

Changes to the Employment Insurance Act under Bill C-44 to s. 12 of the Act which now provides up to 35 weeks of EI benefits for parents who have taken time off work to provide support or care for critically injured or ill children.

These provisions were mirrored in the Canada Labour Code for Federally regulated employees through a coordinating amendment under the Bill to s. 206.1.

Changes were made to s. 206.5  of the Code to provide leave for a leave related to a crime related death or disappearance. Eligible employees must have been employed for at least 6 consecutive months, and are provided up to 104 weeks of leave if the child dies and up to 52 weeks if the child disappears. It probably goes without saying, but employees are ineligible if they participate in this crime,

(4) An employee is not entitled to a leave of absence if the employee is charged with the crime or it is probable, considering the circumstances, that the child was a party to the crime.

Noticeably this provision does not define how probability is assessed and does not require a conviction for the leave to be denied.

Leave changes have also been introduced in Ontario under the Employment Standards Act through Bill 21, which is undergoing its third reading. The Bill provides for similar periods of unpaid leave for crime-related death or disappearance, 37 weeks for care of a critically ill child, and expands family caregiver leave to serious medical conditions instead of just imminent risk of death.

Bill 146 was introduced on December 4, 2013 and is still in its first reading. The Bill would repeal major parts of s. 103 of the Employment Standards Act, removing the $10,000 limit currently in place under s. 103(4), allowing for the imposition of greater penalties when an employer is unwilling or unable to comply with the decision of an employment standards officer.

The Bill would increase time an employee can file a complaint alleging a contravention of the Act from 6 months to 2 years, bringing it into greater accordance with time limits generally used under the Limitations Act.

The Bill would promote greater self-regulation by employers through a new s. 91.1 by requiring self-audits following an inspection,

Self-audit

91.1 (1) An employment standards officer may, by giving written notice, require an employer to conduct an examination of the employer’s records, practices or both to determine whether the employer is in compliance with one or more provisions of this Act or the regulations.

Employers will be required under the Bill to provide employees a copy of the most recent ESA poster within 30 days of being hired, whereas the current obligation does not specify a timeframe and must simply be in a conspicuous place.

The current Act requires the employer to make inquiries of the Minister for translations of the poster if the majority language of the workplace is other than English. The new Bill would require employers to make this inquiry on the request of an employee.

Section 4(5) of the Act already has joint and several liability for multiple employers, but the relationship between temp agencies, employers and temp workers can be a tricky one. Bill 146 introduces joint and several liability for both the employer and the agency for unpaid wages, overtime, termination and severance pay.

Amendments to s. 74.18 would hold deem the client of the temp agency an employer, and the employer can be liable even when there are multiple clients using the same employee from the temp agency. The employee would be required to exhaust all remedies for collecting owed wages from the agency before pursuing the claim against an employer. Given this shared risk, amendments to s. 74.4.1 and 74.4.2 require both the agency and the employer to collect records on how long employees work, maintain these records for three years, and make them available for inspection.

The forgoing is based on notes from a talk by Christopher Statha of Devry Smith Frank LLP at a seminar on January 30, 2014.