legal words
If the answer is “no” to any of these, then an employer will be
off to a poor start when a Ministry of Labour (MOL) inspector
shows up.
In proceeding with a self-audit, an employer has to decide how
broad it will be. Certainly, if prior ESA issues have been raised,
then any self-audit should address whether those issues have been
appropriately resolved. A self-audit can focus on any number of
substantive ESA obligations (including hours of work; overtime;
averaging or maximum hours; vacation; public holidays) and/or
recordkeeping and retention requirements for all such obligations.
Getting organized now on a self-audit can certainly prove to be
a valuable precursor to any MOL audit. A proactive self-audit and
correction of any noncompliant practices will likely provide a positive
starting point for such audit.
Finally, in consultation with legal counsel, consideration should
be given to whether lawyer-client privilege is desirable and whether
a self-audit should be conducted as the basis for privileged legal
advice.
2. THOROUGHLY REVIEW ALL “CONTRACTOR”
RELATIONSHIPS NOW
Bill 148 amendments relating to misclassification of such relationships
are scheduled to be effective on Royal Assent (likely prior to
January 1, 2018). An employer needs to carefully identify and examine
all relevant documents (including any written agreement)
as well as all terms to which any contractor is subject. A comparison
must also be drawn between a contractor’s responsibilities and
terms and those of a “regular employee.”
If an employer determines that a contractor is not truly “independent,”
then a strategy needs to be formulated as to whether to
terminate the relationship or to somehow transform it into employment.
An employer must assess both the legal and business
“pros and cons” of every contractor relationship, and implement a
strict approval process as a precondition for any contractor agreement.
A risk analysis needs to be undertaken and the employer
needs to identify its risk tolerance as it decides whether to maintain
a particular contractor relationship.
3. REVIEW POTENTIAL COSTS OF BILL 148
AMENDMENTS NOW
The greater the costs and the more important the Bill 148 issues,
the more an employer should be considering whether to assess and
pursue advocacy alternatives. There may still be an opportunity to
influence the final form of Bill 148. However, amendments governing
certain “bread and butter” and “election-friendly” issues
(e.g., increasing the minimum wage and increasing the minimum
vacation entitlement to three weeks after five years) are less likely
to change. Apart from the “broad consultation process,” there
may also be an opportunity for direct advocacy with the MOL either
through legal counsel or through various organizations (e.g.,
Coalition to Keep Ontario Working).
4. THOROUGHLY REVIEW ALL HIRING LETTERS,
EMPLOYMENT CONTRACTS, POLICIES,
HANDBOOKS, PLANS AND COLLECTIVE
AGREEMENTS
Any terms in these documents inconsistent with Bill 148 (and
current ESA requirements) must be identified, and appropriate
changes need to be drafted. An implementation strategy needs to
be developed for final Bill 148 amendments (particularly with a
collective agreement where amendments will obviously require
union consent).
An employer should also critically examine all termination
clauses because of many recent cases that make it more difficult to
limit entitlements on termination without cause.
5. IN FALL 2017, IDENTIFY APPROPRIATE
MANAGERS FOR TRAINING
This is especially important with respect to misclassification/independent
contractor issues.
6. ONGOING MONITORING OF THE MOL’S
WEBSITE ANNOUNCING ESA INSPECTION
BLITZES
It is always helpful to know in advance the particular industries
targeted for MOL inspection.
In light of the pending Ontario election on June 7, 2018, it is
perhaps not surprising that the current descent on the roller coaster
ride will be dizzying and certainly much faster than desired by
employers. Hold on tight! n
George Vassos counsels employers on a wide variety of labour and
employment law issues, including ESA issues, out of the Toronto
office of Littler LLP.
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14 ❚ JULY 2017 ❚ HR PROFESSIONAL
