Updates to Ontario Employment Standards: Impact for Sport Organizations

The increase to the Ontario minimum wage was not the only important employment-related change that has recently come into effect. Improved worker protections, changes to employment standards, and mandatory employee benefits also became law. Every sport organization with employees in Ontario will need to review their human resources policies and potentially make changes to their employment agreements in order to comply with the changes to the legislation.

Overview

The new legislation is called Fair Workplaces, Better Jobs Act, 2017 and it amends the Employment Standards Act, 2000, the Occupational Health and Safety Act (OHSA), and the Labour Relations Act, 1995. A number of the amendments are unlikely to apply to sport organizations, such as the amendment that states that an employer may not require an employee to wear high heels. Only the amendments relevant to sport organizations are discussed in this blogpost.

Extended Leave

Leave entitlements have increased significantly. Here are the relevant changes:

  • Pregnancy leave is increased from 6 to 12 weeks, in certain circumstances
  • Parental leave is increased from 35 to 61 weeks for employees who take pregnancy leave, and from 37 to 63 weeks otherwise
  • Family medical leave is increased from 8 to 28 weeks
  • Family medical leave can now be taken in order to care for a critically ill family member – not just a critically ill child
  • Up to 104 weeks of unpaid leave can now be taken if an employee’s child dies for any reason – not just because of a crime-related death

Personal Emergency Leave now applies to all employers – not just employers who employ more than 50 employees. Personal emergency leave can be taken if the employee (or a close family member) experiences an illness, injury, or medical emergency, or if there is an urgent matter involving a close family member.  An employee can take up to 10 days of personal emergency leave and the first two of those days must be paid. An employer can request evidence of why the employee is entitled to this leave but may not require a doctor’s note. Employees are not entitled to more wages if they take their paid personal emergency leave on holidays or other days where additional wages would be expected.

Domestic or Sexual Violence Leave entitles an employee who has been employed for longer than 13 consecutive weeks and who experienced, or was threatened with, domestic or sexual violence to a certain amount of leave. The employee can also take this leave if the employee’s child experienced or was threatened with domestic or sexual violence. The leave entitlements here can be up to 10 days or up to 15 weeks (depending how the leave is taken) and the first five days must be paid.

 Vacation and Wages

Employees who are employed for five years or longer are now entitled to three weeks paid vacation or 6% vacation pay.

Beginning January 1, 2019, employees who complete shift work will be required to be paid for three hours of work even if the shift length was less than three hours (provided the employee is available for those hours).  Employees who are asked to work or to “on call” can refuse to work if sufficient notice (96 hours) is not given. Finally, employees who are scheduled to work or to be “on call” are entitled to be paid for three hours of work if the shift is cancelled without sufficient notice (48 hours).

Minimum wage has increased in 2018, and will increase again in 2019. Employees who are students and younger than 18 years old (who do not work more than 28 hours a week) have had their hourly minimum wage rise to $13.15 in 2018 and it will rise to $14.10 in 2019.

Employees who are 18 years old or older have had their hourly minimum wage rise to $14.00 in 2018 and it will rise to $15.00 in 2019.

One new amendment (coming into effect April 1, 2018) that may particularly affect sport organizations is a provision for “equal pay for equal work”. This amendment requires employers to provide equal pay for work regardless if the work is being done by a full-time or part-time employee and regardless of the employee’s gender identity. This means that if a female full-time coach receives $20/hr for coaching competitive swimmers, then a male part-time coach must receive the same pay. Equal pay must be given provided that the following are all “substantially the same”: the work being done, the working conditions, and the requirements (skill, effort, and responsibility) of the work. Different rates of pay are still permitted if the rate of pay is based on factors other than gender identity or employment status (such as seniority, merit, or productivity).

Employment Status

One significant change to the legislation that may be overlooked in other industries but will have implications in the amateur sport industry is the treatment of employees and independent contractors.

This amendment clarifies that an employer must not treat an individual who is an employee as if the person were not an employee. This means that the employer must be careful to outline when an individual is an independent contractor. Should the individual actually be found to be an employee - and the employer was treating that person as if he or she was an independent contractor - then the employer could face repercussions. The onus will now be on the employer to prove that the individual is not an employee. We have written about the difference between employees and independent contractors in previous blogposts (here and here).

Record Keeping

Record keeping in primarily volunteer-run sport organizations can be especially challenging. The new amendments to the legislation require that employers keep records of their employees for five years (an increase from three years) after the end of their employment, and include far more information in the records.  Here are the records required to be kept:

  • Name, Address
  • Start date, end date
  • Hours worked (daily and weekly)
  • Duties and times of work
  • On-call schedules
  • Changes made to scheduling (including cancelled shifts)
  • Dates and hours worked
  • Dates and times of overtime worked (and the overtime rate)
  • Substitute holidays
  • Vacation pay and time
  • Documentation of all leaves taken

Updating Policies and Agreements

The updated amendments to the legislation supersede whatever content is in your sport organization’s policies or employee agreements. This means that if you pay an employee an hourly wage of $13.50, as stated in the employee agreement, this amount is automatically upgraded to the new minimum wage of $14.00/hr. We suggest every organization review its employment agreements to ensure consistency with the new Ontario legislation.

Additionally, your sport organization’s Human Resources Policy should be updated to include, at minimum:

  • Increased vacation entitlement
  • New section on Personal Emergency Leave
  • New section on Domestic or Sexual Violence Leave
  • Updates to sections on Pregnancy, Paternal, and Family Medical Leave
  • New section on shift work, if applicable

Finally, your sport organization should be very clear on which individuals in your organization are independent contractors and which are considered to be employees.

We can help you understand that distinction or update your policies, and we can answer questions related to your new responsibilities under the amended legislation. Please feel free to contact me at SJI@sportlaw.ca.

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