In a previous bulletin, we advised readers of the enactment of Bill 18, the Stronger Workplaces for a Stronger Economy Act, 2014, which introduced significant changes to several employment-related statutes in Ontario. Some of the changes introduced by Bill 18 came into force on enactment, while others are being phased in over time.
Notably, on November 20, 2015, several significant changes to the temporary help agency provisions of the Employment Standards Act, 2000 (ESA) will come into force. These changes widen the scope of liability in cases where an assignment employee is not paid his or her wages by a temporary help agency and also impose new record keeping obligations on clients of temporary help agencies in respect of the assignment employees. The changes include the following:
- Joint and Several Liability. Temporary help agencies and their clients will be jointly and severally liable for unpaid wages to assignment employees. Although the temporary help agency has the primary responsibility for wage payments, assignment employees can bring a claim for unpaid wages against the client if the temporary help agency does not meet its obligation to the employee. For purposes of these new joint and several liability provisions of the ESA, "wages" includes regular wages, overtime pay, public holiday pay, and premium pay earned during the relevant pay period. In the case of multiple assignments in such a pay period, each client of the temporary help agency may be held jointly and severally liable with the temporary help agency for a share of the total wages owed to the employee. For the purposes of such a claim, the client of the temporary help agency will be deemed to be the employer of the assignment employee.
- Record Keeping. Temporary help agencies and their clients will now be required to record the number of hours worked by each assignment employee in each day and each week. These records must be maintained for three years and be readily available for inspection. This requirement applies even where the temporary help agency has retained an external party to maintain and/or retain such records.
Given these impending changes, employers who utilize the services of temporary help agencies and assignment employees are well advised to review their existing practices to ensure compliance with these new statutory requirements.