Digital Platform Workers' Rights Act
Electronic monitoring policies
IT and business consultants under ESA
Other features of Bill 88
On 11 April 2022, the Working for Workers Act 2022 received royal assent. Among other things, Bill 88 introduces a variety of new workplace requirements and amendments, including the Digital Platform Workers' Rights Act 2022, and the requirements of a written policy on electronic monitoring.
Digital Platform Workers' Rights Act
Bill 88 introduces the Digital Platform Workers' Rights Act (the Act). Under the Act, "digital platform work" means the provision of for payment ride share, delivery, courier or other prescribed services by workers who are offered work assignments by an operator through the use of a digital platform.
The Act provides digital platform workers with:
- minimum wage protection for time worked;
- the right to information including how pay is calculated;
- whether tips or gratuities are collected by an operator; and
- when and how they are collected.
The Act also requires the operator to disclose whether the digital platform uses a performance rating system and whether there are any consequences based on the worker's performance rating, or a worker's failure to perform a work assignment. For completed work assignments, operators are also required to provide workers with their average performance ratings when a worker receives five or more ratings on a single day, or over the course of multiple days. The operator must provide whether there are any consequences of such ratings and a description of these consequences.
The Act further requires an operator to establish a recurring pay period and pay day, and it prevents an operator from removing a worker's access to the digital platform without a written explanation or two weeks' written notice where access is removed for 24 hours or longer.
The Act protects workers from reprisals for seeking protections under the Act and establishes that work related disputes must be resolved in Ontario.
Electronic monitoring policies
Bill 88 amends the Employment Standards Act 2000 (ESA) to require any employer with 25 or more employees on 1 January of a given year, to have a written policy in place by 1 March of that year, on how technology, such as computers, mobile phones, is being tracked.
The written policy, a copy of which must be provided to employees, will be required to state whether the employer electronically monitors its workers, a description of how this is done, as well as the purpose of this monitoring. For transitionary purposes, this year employers will be required to develop the electronic monitoring policy within six months of this legislation receiving royal assent (approximately 11 October 2022). The requirements set out in the legislation apply to employees working at the workplace, in the field or at home.
IT and business consultants under ESA
Bill 88 also explains the treatment of many IT and business consultants under the ESA, including criteria to clarify which consultants the ESA does not apply to. These changes will provide businesses clarity on their obligations under the ESA when working with IT and business consultants, while also providing these workers with further work opportunities.
Regulated professions
Bill 88 amends the Fair Access to Regulated Professions and Compulsory Trades Act 2006 to establish timelines within which regulated professions must respond to registration applications from domestic applicants who are registered in the same profession in another Canadian province or territory. The amendment requires regulated professions to make a decision and respond to an applicant within 30 business days of receiving a registration application and all of the necessary supporting documentation.
OHSA
Naloxone kits
Bill 88 amends the Occupational Health and Safety Act (OHSA) by requiring employers who become aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at the workplace, to provide and maintain a naloxone kit in the workplace. These amendments also require the employer to provide training on the maintenance and administration of naloxone.
Fines for convictions under OHSA
Bill 88 increases the applicable fines for convictions under the OHSA. For directors or officers of corporations, the maximum fine that may be imposed is increased from C$100,000 to C$1,500,000. Maximum fines for other individuals are increased to C$500,000. Bill 88 also adds a list of aggravating factors to be considered for the purposes of determining a penalty. These aggravating factors include that the offence resulted in the death, serious injury or illness of one or more workers, the defendant committed the offence recklessly or disregarded an order of an inspector.
Limitation period
Bill 88 also extends the limitation period in which a prosecution must be instituted from one year to two years.
For further information on this topic please contact Lisa Cabel or Richelle Pollard at KPMG Law by telephone (+1 416 777 8000) or email ([email protected] or [email protected]). The KPMG Law website can be accessed at www.kpmg.com.