Canadian Lawyer InHouse

SEPTEMBER 2017 48 INHOUSE going to be paying that much more [to the temps], that will outweigh the value of the fl exibility [they provide]. This could have potentially devastating consequences to the whole temporary work industry." Lara Speirs, executive vice president and general counsel, legal and public affairs at temp agency Randstad Canada, declines to speculate on the impact, but she says her company already operates in one of the most highly regulated jurisdictions for the industry. "Now there are to be even more sweeping changes, many of which were not recommended in the fi nal report. We're concerned for ourselves, our industry and our clients." McGinnis agrees, pointing out that On- tario operates in a competitive economy and competes with less regulated jurisdictions. He says companies now face consider- able compliance-related activity as a result of the new rules and the justifi cations seem "anti-business." Bill 148 contains controversial provi- sions applicable to shift work. Employers must pay three hours of wages if they can- cel a shift with fewer than 48 hours notice. Employees can refuse shifts without re- percussion if the employer gives them less than four days notice. Employees will also have the right to request changes to their schedule after working somewhere for three months (though the employer does not have to fulfi l the request). There's also the question of whether the province can realistically enforce all the mi- cro-rules being put in place such as around shift notices. "By micro-managing the relationship too much you run the risk of not being able to enforce it at all," he says. "It's all very well to have rules, but it's more important for people to have jobs," he says. "If I had to pick between two things, I would regulate health and safety more than how much notice someone gets of a week- end shift." Temp agency workers must be given at least one week's notice when a job that was supposed to last longer than three months ends early. If that notice is not given, the temp must be paid the difference. "For some industries, where work days are not standard, the changes will really limit the employer's fl exibility when it comes to scheduling," says Rudner. The 48-hour no- tice rule "will either change practices or end up adding to labour costs." Kuzz adds: "It affects hotels as well as res- taurants, but also health-care industries. In in-home health care, the client has the abso- lute right to cancel a visit. There may just be no work to perform." Employers that misclassify workers as "independent contractors" instead of em- ployees in order to avoid Employment Stan- dards Act obligations would be subject to fi nes. There's good reason for the penalties, says Rudner. "There's been a massive mis- use of the contractor label. The last fi ve or 10 years, we've seen almost an epidemic of contractors who are really employees in all but name. For employers, it may be a way to cut labour costs. They don't have to pay EI premiums and CPP premiums, but for employees, they lose the protections of the ESA as well as common-law rights." Once an employee has been with a com- pany for fi ve years, they will be entitled to three weeks of paid vacation. Kuzz says many small businesses don't provide three weeks, or if they do, they make it over 10 years, to act as a retention incentive. Personal emergency days would no longer be limited to workers at companies with 50 or more employees. All workers will receive 10 days annually, two of them paid. Under the bill, employers will not be allowed to re- quest a sick note from an employee taking personal emergency leave. "If the employee just calls in one morning and says he's too sick to come into work, the employer has no right to say, 'We're going Now there are to be even more sweeping changes, many of which were not recommended in the fi nal report. We're concerned for ourselves, our industry and our clients. LARA SPEIRS, Randstad Canada

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