Jan 2019 Charity & NFP Law Update
Ontario Bill 66, Restoring Ontario’s Competitiveness Act, 2018 (“Bill 66”) received first reading on December 6, 2019. Of particular interest to charities and not-for-profits as employers, Bill 66 proposes to amend the Employment Standards Act, 2000 (“ESA”), among other acts. The proposed changes in Bill 66 are intended to reduce the regulatory burden on businesses.
Currently, section 2 of the ESA requires employers to post in the workplace a poster containing information about the ESA (“ESA poster”) prepared by the Minister of Labour (“Minister”). Employers are also required to provide a copy of the most recent ESA poster to all employees. Bill 66 proposes to amend section 2 by removing the requirement for employers to post the ESA poster in the workplace, although they will continue to be required to provide employees with the most recent ESA poster.
Concerning excess hours of work, the ESA restricts the number of hours per work week that an employer may require or permit employees to work, up to a maximum of 48 hours. However, there is an exception carved out to allow for this time to be exceeded where an employer has approval from the Director of Employment Standards (“Director”). Bill 66 proposes to remove this exception, such that employers will no longer require the Director’s approval before entering into such agreements.
With regard to averaging overtime pay, employers are currently required to obtain the Director’s approval to enter into agreements with employees allowing them to average out the employee’s work hours over at least two weeks for the purposes of determining the employee’s entitlement to overtime pay. Bill 66 proposes to remove the requirement for employers to first obtain the Director’s approval before entering into averaging agreements with employees, though the period of averaging in any such agreements could not exceed four weeks.
If passed in its current form, Bill 66 is intended to reduce the administrative burden on employers when entering into work hour agreements and averaging agreements with employees, as well as with regard to ESA posters. However, as Bill 66 has only been carried through first reading, these provisions are subject to change as the Bill is debated. Nonetheless, charities and not-for-profits should monitor the status of Bill 66, as these provisions would come into force upon Royal Assent.
In addition to the Bill 66 changes, amending regulations O Reg 498/18 were filed on December 14, 2018, making changes to existing O Reg 285/01, When Work Deemed to be Performed, Exemptions and Special Rules under the ESA. O Reg 498/18 adds an additional exemption to exclude several kinds of workers from the three hour rule found in the ESA, which rule generally requires employers to pay an employee for a minimum of three hours’ wages in the event that an employee who regularly works more than three hours a day attends work, but works less than three hours despite being able to work for longer. Of the following workers that are now exempt from the three hour rule, several may be of interest to charities and not-for-profits: 1) a person employed as a student in a recreational program operated by a registered charity, whose work or duties are “directly connected” with the recreational program; 2) a person employed as a student whose duties are to instruct or supervise children, and 3) a person employed as a student who works at a camp for children.