New rules for temporary employees were recently put into force in Ontario. In addition to affecting the temporary employees themselves, the new rules affect the temporary help agencies who place the temporary employees, as well as the clients who use the temporary employees in their businesses. Following are some of the highlights of the new rules enacted in Bill 139, Employment Standards Amendment Act (Temporary Help Agencies) 2009.
Which employees are affected by the new rules? The new rules apply to “assignment employees”. An assignment employee means an employee who is employed by a temporary help agency for the purpose of being assigned to perform work on a temporary basis for clients of the agency.
Which businesses fall within the definition of "temporary help agency"? If a business employs individuals for the purpose of assigning them to perform work for a client on a temporary basis, the business may be considered to be a temporary help agency for the purposes of Bill 139.
What obligations does Bill 139 impose on temporary help agencies?
- Finder’s Fee Restrictions: Temporary help agencies are prohibited from restricting clients and temporary employees from entering into an employment relationship. If a client and temporary employee enter into an employment relationship directly at any time 6 months after the temporary employee first performed work for the client, the agency is prohibited from charging a fee to the client.
- Prohibition against charging fees to temporary employees: Temporary help agencies are not permitted to charge temporary employees fees for things such as joining the agency, being assigned by the agency, receiving assistance with resume writing and job interviews, or entering into an employment relationship with a client.
- Information regarding assignment: Temporary help agencies have an obligation to provide the following information in writing to the temporary employee: legal/business name of agency and client, contact information for agency and client, remuneration and benefits associated with an assignment, hours of work, general description of the work to be performed, pay period/day, and estimated term of assignment (provided that information is available).
- Temporary Layoffs: For the purposes of triggering a deemed termination of employment under the Employment Standards Act, a temporary employee will be on temporary layoff during any week he/she is available to work but not assigned to a client.
- Termination and Severance Obligations: Termination and severance pay (subject to some exceptions) is payable upon the termination of employment of a temporary employee and will be calculated based upon the greater of actual earnings during the notice period or the temporary employee's average earnings during the 12 week period immediately preceding his/her last day worked.
What restrictions does Bill 139 place on clients of agencies? No client of a temporary help agency will be allowed to refuse or end the assignment of a temporary employee who makes enquiries, or seeks compliance or enforcement of his/her rights under the Employment Standards Act. A breach can result in an order for both compensation and reinstatement.
Does Bill 139 have any impact on existing temporary help arrangements? Bill 139 applies to all temporary employees, including those assigned before it came into force. Any provision in an existing client or temporary employee contract which is inconsistent with the provisions of Bill 139 is void and unenforceable. Further, if the agency has not already provided the required information regarding an assignment to its existing temporary employees, it is required to do so immediately.
What should temporary help agencies do as a result of the changes? Temporary help agencies should familiarize themselves with the provisions of Bill 139 and undertake a review of any fees charged to clients and/or temporary employees, the wording of their client and temporary employee agreements, and any related policies and practices to ensure that they are compliant with Bill 139. Agencies may also wish to advise their clients of the new requirements and the restrictions placed upon them.
What should clients of temporary help agencies do as a result of the changes? Clients of temporary help agencies should familiarize themselves with the provisions of Bill 139 and undertake a review of their agreements with temporary help agencies. They should also review their practices regarding the use of temporary employees to ensure their practices are consistent with the new legislation.
Where can you go for more information? For further information, you may want to review the text of Bill 139 and the accompanying Explanatory Notes by clicking on the following link: http://www.labour.gov.on.ca/english/es/ib_tha.html