On February 28, 2022, the Ontario government issued Bill 88, the Working for Workers Act, 2022 (Bill 88), not to be confused with the Working for Workers Act, 2021. The majority of the amendments contained in the Act will come into force on the day the Act receives royal assent, which is yet to be determined. The Act proposes to accomplish three major things:
- Enact the Digital Platform Workers’ Rights Act, 2022 (the DPWR) which, among other things, establishes a minimum wage for digital platform workers.
- Amend the Ontario Employment Standards Act, 2000 (the ESA), requiring employers to have a written policy with respect to electronic monitoring of employees.
- Amend the Ontario Occupational Health and Safety Act (the OHSA), increasing the maximum fines directors, officers or individuals may receive for violations of the OHSA.
The Digital Platform Workers’ Rights Act, 2022
The DPWR will apply to those who work for application-based services, such as ride-share drivers, food-delivery drivers and couriers. The legislation proposes to:
- Guarantee a CA$15.00 minimum wage;
- Introduce mandatory recurring pay periods and pay days;
- Prohibit tips from being withheld; and
- Provide the right to have disputes resolved in Ontario.
Those who work for application-based services, or “gig workers”, are not covered by the ESA. The DPWR will govern a separate regime, providing gig workers with some of the rights currently found in the ESA, but will not go as far as to characterize these workers as “employees”.
Importantly, the CA$15 minimum wage will only apply during “active hours” – when drivers are actually performing a service, such as a delivery or a ride, and not in between gigs.
The DPWR will also provide gig workers with certain information-based rights. For example, Bill 88 proposes that gig workers receive written information regarding how an application’s algorithm works, how payment and tips are calculated, and the details of performance rating systems. Further, the DPWR would require management of application-based services to give gig workers both notice of and reasoning as to why they are barred from accessing the service for more than 24 hours.
Electronic monitoring of workers
Bill 88 introduces a new section to the ESA titled “Written Policy on Electronic Monitoring”, pursuant to which employers with 25 or more employees in Ontario will be required to have a written electronic monitoring policy in place. Such policies will need to include:
- Information regarding whether the employer electronically monitors its workers;
- If so, a description of how such monitoring is performed, and under what circumstances; and,
- The purpose of collecting information through such electronic monitoring.
Employers with 25 or more employees in Ontario as of January 1 of each year, must have an electronic monitoring policy in place by March 1 of that same year. Since this requirement is being introduced for the first time this year, employers will have six months after the day the Working for Workers Act, 2022 receives Royal Assent to implement the policy.
Electronic monitoring policies must be dated, track any dates of amendment and include any other information that might be prescribed by regulation. Employers must provide copies of such policy to all employees, including those assigned by temporary help agencies, and must also provide any amendments to existing policies to all employees.
While Bill 88 does not define “electronic monitoring”, this will likely encompass GPS as well as technologies used on corporate networks and on devices including computers, laptops and cell phones provided to employees by employers.
A recent survey conducted on behalf of the Ontario Workforce Recovery Advisory Committee revealed that 89% of Ontarians believe that the workplace has changed permanently as a result of the COVID-19 pandemic and that the Province of Ontario needs to act accordingly by updating employment regulations. Bill 88 reflects the provincial government’s attempt to accomplish this in its effort to protect workers’ privacy.
Changes to the OHSA
Bill 88 will dramatically increase maximum applicable fines for violations of the OHSA as follows:
- It will increase the maximum fines for directors and officers of a corporation from CA$100,000 to CA$1.5 million.
- It will increase the maximum fines for other individuals from CA$100,000 to CA$500,000.
Bill 88 also introduces a list of “aggravating factors” to be considered when determining a monetary penalty, including whether:
- The offence resulted in the death, serious injury or illness of one or more workers;
- The defendant committed the offence recklessly;
- The defendant disregarded an order of an inspector;
- The defendant was previously convicted of an offence under the OHSA or another act;
- The defendant has a record of prior non-compliance with this act or the regulations;
- The defendant lacks remorse;
- There is an element of moral blameworthiness to the defendant’s conduct;
- In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs;
- After the commission of the offence, the defendant,
- attempted to conceal the commission of the offence from the ministry or other public authorities, or
- failed to co-operate with the ministry or other public authorities; or
- Any other circumstance that is prescribed as an aggravating factor.
Finally, Bill 88 will extend the limitations period in the OHSA for instituting a prosecution from one year to two years.