Equal Pay in the Ontario Workplace

Over the past 30 years there has been a gradual progression to establish equal pay in the Ontario Workplace. For employers and human resource managers it’s important to recognize what your obligations are concerning equal pay and that these obligations are increasing.

The Pay Equity Act

For its time, the Pay Equity Act was revolutionary. Enacted in 1987, it requires equal pay between the sexes, not within one job classification, but for work of all job types that are of equal value. The classic example is the receptionist (which is female dominant) and the warehouse worker (which is male dominant). Both jobs are of equal value but the male dominant role is typically paid more.

The Pay Equity Act requires employers to assess the value of each job class and assign it a value based on the following factors:

  1. What qualifications are required?
  2. How much responsibility does the job class require?
  3. What level of effort is required (physical and mental)?
  4. What are the working conditions like (physical danger, stress-level, customer facing)?

If upon completing this analysis, two jobs are of equal value to the company then those jobs should be equally paid.

Equal Pay Under the Employment Standards Act

While the Pay Equity Act legislates equal pay for different work but of equal value, the Employment Standards Act (“ESA”) mandates that employers pay equally for work that is substantially the same. If two employees engage in work that requires the same skill, effort, responsibility, under the same working conditions and in the same establishment, those employees should be equally paid.

The equal pay provisions of the ESA extend beyond gender discrimination to employment status. Since April 1, 2018, employers must not only pay males and females equally, but part time, temporary and seasonal workers must be paid the same as full time workers so long as they are performing substantially the same job.

There are exceptions, however. differences in pay are permitted so long as they are the result of:

  1. a seniority system – a system that pays employee based on length of service;
  2. a merit system – a system that pays employees based on merit: their skills, education, competence, etcetera;
  3. a system that measures earnings by quantity or quality of production – a piecemeal system or similar; or
  4. any other factor other than sex or employment status.

I wrote about the new Equal Pay provisions in the ESA as the changes were taking effect at the beginning of April. Read more details about this section in my post Equal Pay for Part Time Work begins April 1, 2018

Employers should be careful to ensure that any system they are using to determine employee pay is being implemented fairly and communicated to employees in advance. Any measurements of quantity or quality should to the greatest extent possible be objective and recorded.

Further, the ESA considers hourly/salary pay, along with overtime and commission. It does not however, specifically discuss whether it includes benefits, stock options or bonuses. Nevertheless, it may be prudent to consider how these extras are distributed to employees and ensure they are done so fairly.

Bill 203, the Pay Transparency Act, 2018.

On April 26, 2018, the Ontario legislature passed the Pay Transparency Act, 2018. This Act continues the Ontario governments trend towards pay equalization by establishing requirements for employers on disclosing compensation information of employees and prospective employees. Ontario is the first province in Canada to have legislation of this kind.

The major pillars of this legislation are as follows:

  1. Employers will be prohibited from asking for or seeking out information on what a prospective employee was or is being paid;
  2. Employers will be required to include expected compensation or range of compensation in any publicly advertised job posting; and
  3. Certain employers (likely those with a larger payroll) will be required to prepare and post publicly “pay transparency reports.” These reports are to include anonymized wage data with respect to gender and other prescribed characteristics, specifically information about the employer, the employer’s workforce composition, and differences in compensation in the employer’s workforce.

These transparency measures come into force and effect on January 1, 2019. The same day as the $15 minimum wage. Employers with more than 250 employees will have to submit their first pay transparency report by no later than May 15, 2020. Employers with between 100 and 249 employees will have submit their first pay transparency report by no later than May 15, 2021.

The Human Resources Take Away

Employers of all sizes need to consider whether they are maintaining pay equity and equal pay in accordance with the Pay Equity Act and the ESA. With the recent increase to minimum wage and the new April 2018 equal pay requirements, now is the right time to review employee wages across the board and ensure there is no unintended breaches of these Acts.

There is also a need to prepare for the Pay Transparency Act. Even if it may not immediately apply to smaller employers, it may be a good corporate practice to implement.

Leslie Dizgun, the co-author of this article conducts a sophisticated commercial litigation and employment law practice at the law firm of Brauti Thorning Zibarass LLP. For further information on this topic, Leslie’s contact information can be found online at BTZLaw.ca

This post has been republished by HR Insider. If you’re a subscriber to HR Insider you can see the article there at: https://hrinsider.ca/equal-pay-in-the-ontario-workplace/ 


 

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Equal Pay for Part Time Work begins April 1, 2018

For Ontario employers, employing part time and temporary workers is about to become a lot more expensive. On April 1, 2018, the “equal pay for equal work” amendments to the Employment Standards Act, 2002 (the “ESA”) by Bill 148, the Fair Workplaces, Better Jobs Act 2017, come into legal effect.

Ontario employees have long had the protection of the Pay Equity Act, and similar provisions in the ESA, that prevented women (and men too) from being paid less than their peers on the basis of sex. As of April 1, 2018, the ESA will now provide for an entitlement for equal pay from an employer regardless of a difference in employment status.

“Difference in employment status”, in respect of one or more employees, will now be defined as:

a difference in the number of hours regularly worked by the employees; or a difference in the term of their employment, including a difference in permanent, temporary, seasonal or casual status

As a result, employers will be required to pay casual, temporary, part-time, and seasonal employees the same rate as permanent and full time employees so long as:

  • they perform substantially the same kind of work in the same establishment;
  • their performance requires substantially the same skill, effort and responsibility; and
  • their work is performed under similar working conditions.

The legislature has attempted to define “substantially the same” to mean “substantially the same but not necessarily identical.” How this will be interpreted by the Ontario Courts is anyone’s guess but likely it will be used to grant discretion to the Tribunal, Judge or Jury on whether two similar jobs are “substantially the same”.

Exceptions

Differences in pay between employees of different sex or similar employment status are permitted so long as the difference in rate of pay is the result of:

  • a seniority system – a system that pays employee based on length of service;
  • a merit system – a system that pays employees based on merit: their skills, education, competence, etcetera;
  • a system that measures earnings by quantity or quality of production – a piecemeal system or similar; or
  • any other factor other than sex or employment status.

Employers should be careful to ensure that any system they are using to determine employee pay is being implemented fairly and communicated to employees in advance. Any measurements of quantity or quality should to the greatest extent possible be objective and recorded.

The Process

Any employee who believes that their rate of pay does not comply with the Equal Pay for Equal Work section of the ESA, may request a review from their employer. Employers are, thereafter, required to either:

  • Adjust the employee’s pay; or
  • Provide a written response setting out the reasons for refusing.

As discussed in my article Important Upcoming Changes to the Ontario Workplace, any written response must be saved according to the new record keeping requirements in the ESA for five (5) years.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Arbitration Clause in Employment Contract puts the Breaks on the Uber Class Action in Ontario

The Ontario Court has confirmed that an arbitration clause in an employment contract is generally enforceable.

Much to the chagrin of Mr. Heller and his lawyers in the proposed class action brought against Uber, Justice Perell of Ontario Superior Court of Justice stayed the lawsuit against Uber. As a result, Uber drivers in Ontario that want to sue for their rights under the Employment Standards Act, 2002 will need to do so by way of Arbitration in the Netherlands.

In the lawsuit of Heller v. Uber Technologies Inc., Heller, the proposed class plaintiff for Uber drivers across Ontario, sued Uber for a finding that they were employees, not independent contractors. If correct, then Uber drivers would be entitled to all the benefits granted to employees under the Employment Standards Act. Uber brought a motion to stay the action in Ontario—effectively ending the law suit—on the basis that when Uber drivers signed up on the “Uber App”, they clicked accept to a long list of terms and conditions that included the following clause:

Except as otherwise set forth in this Agreement, this Agreement shall be exclusively governed by and construed in accordance with the laws of the Netherlands, excluding its rules on the conflict of laws. The Vienna Convention on the International Sale of Goods 1980 (CISG) shall not apply. Any dispute, conflict or controversy, howsoever arising out of or broadly in connection with or relating to this Agreement, including relating to its validity, its construction or its enforceability, shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such a dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”) …. The Place of the arbitration shall be Amsterdam, The Netherlands.

After finding that the International Commercial Arbitration Act, 2017, applies the Court considered:

  1. Whether the Competence-Competence Principle applied? or
  2. Whether there was some other reason to refuse to send the matter to arbitration.

The Competence-Competence principle holds that in general “a challenge to the arbitrator’s jurisdiction should be first resolved by the arbitrator.” The Court found that this principle did apply and that there were no exception to rely on that would benefit Mr. Heller. The Court held that the arbitration provision was not illegal for being unconscionable.

In short, Mr. Heller’s argument was summarized as follows:

it would be an absurd result and contrary to public policy to enforce an arbitration agreement in an employment contract and thereby deny vulnerable non-unionized employees their rights and protections under the Employment Standards Act, 2000, which precludes employees contracting out of their rights under the Act.

The Court reasoned that it was their role to interpret statute and not enact it and the Employment Standards Act does not, unlike the Consumer Protection Act, preclude arbitration clauses. Therefore, the Court held that the class action lawsuit should be stayed as a result of the arbitration clause in the employment contract, “be the result absurd public policy or not.”

What is the take away?

The decision of Heller v. Uber Technologies Inc., 2018 ONSC 718, confirms that Arbitration clauses in employment agreements are generally enforceable.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Public Holiday Pay: What You Need to Know

Read on to get answers to some of the most common questions about holiday pay in Ontario.

What are the statutory holidays in Ontario?

In Ontario, there are 9 public statutory holidays for which employees are entitled to take off work and be paid.

  • New Years Day
  • Family Day
  • Good Friday
  • Victoria Day
  • Canada Day
  • Labour Day
  • Thanksgiving Day
  • Christmas Day; and
  • Boxing Day.

Easter Sunday, Easter Monday, the first Monday in August and Remembrance Day are not public holidays.

Can employers force employees to work on statutory holidays?

Sometime yes and sometime no.

In most industries, employers cannot require employees to work on statutory holidays; however, if an employee agrees in writing – paper or electronic – then they may work but are entitled to either:

  1. Pay for that public holiday plus premium pay for all hours worked on that day; or,
  2. Regular wages for all hours worked on the holiday plus another substitute holiday off for which they are to be paid.

The employee gets to choose which of the above options they’d prefer. If they choose option 2, the employer must get the employees decision in writing.

If the business is “a hospital, a continuous operation, or a hotel, motel, tourist resort, restaurant or tavern”, then an employee may be required to work on public holiday if:

  1. That holiday would otherwise be ordinarily a working day; and
  2. That employee is not on a scheduled vacation;

If an employer requires the employee to work, then that employee is entitled to either:

  1. Pay for that public holiday plus premium pay for all hours worked on that day; or;
  2. Regular wages for all hours worked on the holiday plus another substitute holiday off for which they are to be paid.

In these circumstances, the employer gets to choose which of the above options they’d prefer.

How much is Premium Pay?

Premium pay must be at least 1.5 times an employees regular rate of pay.

How do Substitute Public Holidays Work?

If an employer is providing a substitute holiday to an employee, the employer must provide to the employee written notice that sets out:

  1. The public holiday which the employee is going to work;
  2. The date of the day that is substituted for the public holiday; and
  3. The date written notice is provided to the employee.

The substituted day must be no more than three months after the public holiday, unless the employee and employer agree in writing, then it must be no more than 12 months after the public holiday.

How to Calculate Statutory Holiday Pay?

An employee’s public holiday pay for any given public holiday is equal to the total amount of regular wages earned in the pay period immediately preceding the public holiday divided by the number of days the employee worked in that period.

Holiday Pay = Regular Wages / Days Worked

Note:

  • Regular wages does not include any overtime pay, vacation pay, public holiday pay, premium pay, personal emergency leave pay, domestic or sexual violence leave pay, termination pay, severance pay or termination of assignment pay payable to an employee.
  • If the employee was on leave or on vacation or both for the entire pay period before the public holiday, the regular wages earned by the employee in the pay period before the start of that leave or vacation, divided by the number of days the employee worked in that period is used to calculate the public holiday pay.
  • If the employee was not employed during the pay period before the public holiday, the public holiday pay is calculated using the regular wages earned by the employee in the pay period that includes the public holiday, divided by the number of days the employee worked in that period.[1]
Examples:

Freddie Full Time

Patrick Part Time

Olivia Occasional

  Freddie, Patrick and Olivia work for the same company. There is a two-week (or 10-business day) pay period and they each earn $20.00 Hour. In the pay period prior to the public holiday:

  • Freddie worked every day, 7.5  hours a day.
  • Patrick worked every afternoon except Fridays for 5 hours.
  • Olivia worked three 7.5 hour days.
Freddie’s Regular Wages = 10 days * 7.5 Hours * $20.00 per hour = $1,500 Patrick’s Regular Wages = 8 days * 5 Hours * $20.00 per hour = $800 Olivia’s Regular Wages = 3 days * 7.5 Hours * $20.00 per hour = $ 450
Holiday Pay = Regular Wages / Days Worked

= $1,500 / 10

Holiday Pay = $150.00

Holiday Pay = Regular Wages / Days Worked

= $800 / 8

Holiday Pay = $100.00

Holiday Pay = Regular Wages / Days Worked

= $450 / 3

Holiday Pay = $150.00

Yes, the above calculation is correct, Olivia who earned just over half of what Patrick earned in the previous pay period is entitled to more public holiday pay. You may be a little shocked and in fact there has been some controversy as a result. Nevertheless, as of today (Feb 2018), this is how public holiday pay is calculated in Ontario.

Anything else I might want to know?

Overtime – If an employee reviewed premium pay for work on a statutory holiday, then the hours worked do not count towards overtime.

Termination/Resignation  – If employment ends before the employee receives the substituted public holiday, then that employee is entitled to public holiday pay for that day.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

 

[1] Ontario Ministry of Labour, Your Guide to the Employment Standards Act – Public Holidays (Online: Ontario.ca; Feb 2018);

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