More changes ahead – what Bill 88 means for your workplace

By: Amanda Pizzardi

Can you spy on your employees without telling them? Do you need to have naloxone kits handy at the office? Will Uber drivers have a right to minimum wage? Bill 88, Working for Workers Act, 2022, aims to address these concerns and others by amending the Employment Standards Act, 2000 (“ESA”), the Occupational Health and Safety Act (“OHSA”), and implementing a brand-new Digital Platform Workers’ Rights Act, 2022. While Bill 88 has not yet been passed, some highlights of the proposed legislation are further described below.

Monitoring employees

Bill 88 would amend the ESA by adding a new Part XI.1 which imposes a requirement on employers that employ 25 or more employees to have a written policy with respect to electronic monitoring of employees. The written policy (which must be provided to all employees) must contain the following information:

  1. Whether the employer electronically monitors employees and if so, (i) a description of how and in what circumstances the employer may electronically monitor employees, and (ii) the purposes for which information obtained through electronic monitoring may be used by the employer.
  2. The date the policy was prepared and the date any changes were made to the policy; and
  3. Such other information as may be prescribed.

Notably, nothing in this section will affect or limit an employer’s ability to use information obtained through electronic monitoring of its employees.

Requirement to provide naloxone kits

Bill 88 proposes to amend the OHSA to require employers to provide naloxone kits if the employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace.  These employers must also comply with any maintenance and training with respect to the naloxone kits.

Removal of “business consultants” and “information technology consultants” from the scope of the ESA

Bill 88 proposes to amend the ESA to state that it does not apply to “business consultants” and “information technology consultants”, meaning workers who are captured under these defined terms would not be able to benefit from the various entitlements under the ESA if the following requirements are met:

  1. The business consultant or information technology consultant provides services through, (i) a corporation of which the consultant is either a director or a shareholder who is a party to a unanimous shareholder agreement, or (ii) a sole proprietorship of which the consultant is the sole proprietor, if the services are provided under a business name of the sole proprietorship that is registered under the Business Names Act.
  2. There is an agreement for the consultant’s services that sets out when the consultant will be paid and the amount the consultant will be paid, which must be equal to or greater than $60 per hour, excluding bonuses, commissions, expenses and travelling allowances and benefits, or such other amount as may be prescribed, and must be expressed as an hourly rate.
  3. The consultant is paid the amount set out in the agreement as required by paragraph 2.
  4. Such other requirements as may be prescribed

The new Digital Platform Workers’ Rights Act, 2022

Bill 88 proposes to enact a brand-new piece of legislation, the Digital Platform Workers’ Rights Act, 2022(“DPWRA”), which will establish rights for workers who perform “digital platform work”. That term is defined as “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[1]”.

Under the proposed DPWRA, digital platform workers would be entitled to, amongst other things:

  • At least the minimum wage payable under the ESA (currently set at $15.00/hr) not including tips and other gratuities;
  • A recurring pay period and pay day;
  • Tips, without withholdings or deductions from the operator of the digital platform (unless certain exceptions apply);
  • Various pieces of information, including but not limited to:
    • how pay is calculated;
    • whether and when tips or other gratuities will be collected by the operator;
    • any factors used to determine whether work assignments are offered to workers and a description of how those factors are applied; and
    • Whether the digital platform uses a performance rating system and whether there are consequences based on a worker’s performance rating (and a description of those consequences).
  • Access to the digital platform, unless provided with a written explanation of why his/her access was removed;
  • File a complaint with the Ministry if the worker alleges the DPWRA has been breached;
  • Be free from reprisal if the worker makes inquiries about his/her rights under the Act, asks any person to comply with the Act, or exercises his/her rights under the Act;
  • Resolve all work-related disputes in Ontario.

Key Takeaways

While Bill 88 has not yet become law, prudent employers should turn their minds to these proposed changes and prepare to amend their workplace policies and regulations. If you have any questions about how Bill 88 may affect your workplace, feel free to contact any of our lawyers.

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[1] A “digital platform” is defined as “an online platform that allows workers to choose to accept or decline digital platform work”.

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