Working for Workers Act, 2022 introduced and carried at first reading

by Rhonda B. Levy, Barry Kuretzky and George Vassos of Littler

On the heels of the passage of the Working for Workers Act, 2021, Ontario introduced Bill 88, Working for Workers Act, 2022 (Bill 88) on February 28, 2022, and carried it at First Reading.1 If passed in its current form, Bill 88 would enact the new Digital Platform Workers’ Rights Act, 2022 (DPWRA), and make amendments to the Employment Standards Act, 2000 (ESA), the Fair Access to Regulation Professions and Compulsory Trades Act, 2006 (FARPCTA), and the Occupational Health and Safety Act (OHSA). Bill 88 would come into force on the day it receives Royal Assent.

We discuss the developments proposed in Bill 88 below.

1. Enactment of the New DPWRA

The DPWRA is set out at Schedule 1 of Bill 88. It would come into force on a day to be named by proclamation of the Lieutenant Governor. The DPWRA would establish foundational rights and protections for gig workers, which the bill describes as workers who provide “digital platform work,” i.e., ride share, delivery, courier or other prescribed services based on work assignments offered by an operator through a “digital platform,” defined as “an online platform that allows workers to choose to accept or decline digital platform work.”

Worker Rights

Right to Information

Within 24 hours after an individual is given access to a digital platform for the purpose of accepting or declining to perform digital platform work, they would have the right to be provided the following information in writing:

• A description of how pay is calculated.
• Whether tips or other gratuities are collected by the operator and, if so, when and how.
• The recurring pay period and recurring pay day.
• Any factors used to determine whether work assignments are offered to workers and a description of how they are applied.
• Whether a performance rating system is used, whether there are consequences based on a worker’s performance rating or their failure to perform a work assignment, and a description of those consequences.
• Such other information as may be prescribed.

Workers would have the right to additional information in writing when they are offered a work assignment, and within 24 hours of completing a work assignment.

Right to Recurring Pay Period and Pay Day

Workers would have the right to a recurring pay period and pay day, and to be paid all amounts earned, including tips or other gratuities collected during each pay period, no later than on the pay day for that period.

Right to Minimum Wage

Workers would have the right to be paid at least the general minimum wage (currently $15 per hour) for each work assignment they perform.

Right to Amounts Earned and Tips and Other Gratuities

Workers would have the right to the amounts they earn or their tips and other gratuities received.  The operator could not withhold them, make deductions from them, or cause the worker to return or give them to the operator, unless the operator is authorized to do so by a federal or Ontario statute or a court order; the operator would not be permitted do so, however, if the statute or court order requires the operator to remit the withheld, deducted, returned or given amounts to a third person, and the operator fails to do so.

Right to Notice of Removal

A worker would have the right not to have their access to the digital platform removed unless they are provided with a written explanation why their access is being removed. If a worker’s access is removed for 24 hours or more, they would be entitled to two weeks’ written notice of the removal, provided the worker was not guilty of willful misconduct, among other prescribed circumstances.

Right to Dispute Resolution in Ontario

All digital platform work-related disputes between an operator and worker would have to be resolved in Ontario.

Right to be Protected Against Reprisal (Intimidation, Penalties)

No operator or person acting on behalf of an operator could intimidate, penalize, or attempt to threaten to intimidate or penalize a worker:

• Because the worker:
  • Asks any person to comply with the DPWRA;
  • Makes inquiries about their rights under the DPWRA;
  • Files a complaint with the Ministry under the DPWRA;
  • Exercises or attempts to exercise a right under the DPWRA;
  • Gives information to a compliance officer; or
  • Testifies or is required to do so or otherwise participates or is going to participate in a proceeding under the DPWRA.
• Because the operator is or may be required, because of a court order or garnishment, to pay a third party an amount owed by the operator to the worker.

Record Keeping

An operator would have to record, retain or arrange for another person to retain (for three years after the worker’s access to the digital platform is terminated), and make readily available for inspection as required by a compliance officer, records of the following information regarding each worker:

• Name and address.
• Dates the worker was given access to the digital platform to perform work.
• Any dates the worker’s access to the operator’s digital platform was removed or reinstated.
• Dates the worker performed work assignments and the times each one started and finished.
• Any amounts paid to the worker for a work assignment, the dates they were paid, and a description of the payments, including any tips, other gratuities, or other amounts included in the payment.
• Such other information as may be prescribed.

2. Amendments to the ESA

Treatment of Certain Information Technology and Business Consultants

Schedule 2 of Bill 88 would clarify the treatment of certain information technology (IT) and business consultants under the ESA. The amendments provide that the ESA does not apply to them (and any person they perform work for or from whom they receive compensation), if the following requirements are met:

• The business or IT consultant provides services through:
  • a corporation of which the consultant is either a director, or a shareholder who is a party to a unanimous shareholder agreement, or
  • a sole proprietorship of which the consultant is the sole proprietor, if the services are provided under a business name of the sole proprietorship that is registered under the Business Names Act.
• There is an agreement for the consultant’s services that sets out when the consultant will be paid and the amount the consultant will be paid, which must be equal to or greater than $60 per hour, excluding bonuses, commissions, expenses and travelling allowances and benefits, or such other amount as may be prescribed, and must be expressed as an hourly rate.
• The consultant is paid the amount set out in the agreement as required by paragraph 2.
• Such other requirements as may be prescribed.

If passed, the part of Schedule 2 that clarifies the treatment of certain IT and business consultants under the ESA will come into force on January 1, 2023.

Requirement Imposed on Certain Employers to Have a Written Policy on Electronic Monitoring

Ontario recently announced that to protect the privacy of employees, it would be the first province to introduce legislation requiring employers to tell their workers if and how they are being monitored electronically. Schedule 2 of Bill 88 provides that Part XI.1: Written Policy on Electronic Monitoring will be added to the ESA.

Application and Compliance

Part XI.1 of the ESA would require an employer that, on January 1 of any year, employs 25 or more employees, to, before March 1 of that year, ensure it has a written policy in place for all employees with respect to electronic monitoring of employees (Policy).

For purposes of initial compliance, however, an employer would:

• Have until the date that is six months after the day Bill 88 receives Royal Assent instead of March 1 to comply with the requirement to have a Policy in place, and
• Determine whether it employs 25 employees or more as of the January 1 immediately preceding the date Bill 88 receives Royal Assent.

Information in Policy

The Policy would have to provide the following information:

• Whether the employer electronically monitors employees and if so, a description of how and in what circumstances the employer may electronically monitor employees, and the purposes for which information obtained through electronic monitoring may be used by the employer.
• The date the Policy was prepared and the date any changes were made to the Policy.
• Such other information as may be prescribed.

Copies of Policy

An employer required to have a Policy must provide a copy of it to:

• Each of its employees within 30 days from: (a) the day they are required to have the written Policy in place, or (b) the day changes are made to an existing written Policy.
• A new employee within 30 days: (a) of the day the employee becomes an employee of the employer, or (b) from the day the employer is required to have the written Policy in place, whichever is later.

If an employer is a client of a temporary help agency (THA), and it is required to have a Policy, the employer must provide an assignment employee assigned to perform work for it with a copy of the Policy:

• Within 24 hours of the start of the assignment, or
• Within 30 days from the day the employer is required to have the Policy in place, whichever is later.

As well, an employer is required to retain (or arrange for another person to retain) copies of every Policy required under Part XI.1 for three years after it ceases to be in effect.

If passed, the part of Schedule 2 that requires employers to ensure they have a Policy in place will come into force on the day Bill 88 receives Royal Assent.

Expansion of Reservist Leave

Schedule 2 of Bill 88 would amend the ESA to:

• Expand Military Reservist leave to cover time in Canadian Armed Forces military skills training, and
• Reduce the amount of time the employee needs to be employed by the employer before they are entitled to begin the leave, from at least six months to at least three months.

If passed, the part of Schedule 2 that amends the Reservist Leave provisions of the ESA will come into force on the day Bill 88 receives Royal Assent.

3. Amendment of the FARPCTA

Schedule 3 of Bill 88 would amend the FARPCTA to require a regulated profession to make a registration decision within 30 business days of receiving an application for registration from a “domestic labour mobility applicant,” and everything the registered profession requires in respect of the application. A “domestic labour mobility applicant” is an individual who is applying for registration with a regulated profession in Ontario and is currently registered with a regulator of the same profession in another province or territory.

If passed, the part of Schedule 3 that amends the FARPCTA to establish this requirement will come into force on a day to be named by proclamation of the Lieutenant Governor.

4. Amendments to OHSA

Schedule 4 of Bill 88 would amend OHSA as follows:

Naloxone Kits

Employers would be required to:

• Provide and maintain in good condition a naloxone kit in workplaces where they are aware, or ought to be aware, that there may be a risk of a worker having an opioid overdose; and
• Ensure the naloxone kit is in the charge of a worker working in the kit’s vicinity and who has been trained to recognize an opioid overdose, administer naloxone, and has also received training on the hazards related to its administration.

If passed, the part of Schedule 4 that establishes this requirement will come into force on a day to be named by proclamation of the Lieutenant Governor.

Increase of Maximum Fines

Amendments stipulate that if there is a failure to provide a safe work environment and it leads to a worker’s severe injury or death on the job:

• Directors and officers will be subject to a maximum fine of $1,500,000 or to a prison term of up to 12 months; and
• Individuals will be subject to a maximum fine of $500,000.

If passed, the part of Schedule 4 that establishes these increases will come into force on the later of July 1, 2022 or the day Bill 88 comes into force.

Aggravating Factors to Be Considered Upon Determining Penalties

Amendments establish that the following aggravating factors should be considered upon determining penalties against corporate and individual defendants:

• 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 this 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 (a) attempted to conceal the commission of the offence from the Ministry or other public authorities, or (b) failed to cooperate with the Ministry or other public authorities.
• Any other circumstance that is prescribed as an aggravating factor.

If passed, the part of Schedule 4 that establishes the requirement to consider these aggravating factors upon determining penalties against corporate and individual defendants will come into force on the later of July 1, 2022 or the day Bill 88 comes into force.

Bottom Line for Employers

Bill 88 was carried at First Reading on February 28, 2022, but it is important for employers to note that it is not yet law. At this point, it is too early to know if it will be amended or passed and in what form. In the meantime, employers should monitor Bill 88 as it makes its way through the legislative process, become familiar with the proposed enactment of the DPWRA, and the proposed amendments to the ESA, the FARPCTA, and OHSA, and consider how each of these developments could affect their operations.

We will report further if Bill 88 advances.