There has been a recent trend among employers of hiring individuals and consistently keeping their hours at a level to avoid the status of full-time employment. The prevalence of such scheduling of part time workers has given rise to a new term in popular vocabulary known as “perma-temp”, which recognizes the existence of the continuum of part time workers in many companies. The Ontario Government has created new laws designed to combat this. These revisions become law as of April 1, 2018.
Ontario is the first jurisdiction in North America to provide this safeguard to temporary workers.
The new rules are designed to ensure fair wages will be paid to temporary workers. As a result of the changes, the wages paid to a part-time worker must be the same as the earnings of a full-time worker who does “substantially the same kind of work”, where the work requires “substantially the same skill and responsibility” and the work is done under “similar working conditions”.
The Path to Follow
The new law puts in place a process by which the temporary worker may request a review of their compensation if they believe that the employer is in violation of this obligation.
The employer must then respond to this request by either adjusting the rate of pay, or alternatively, by offering an explanation for the differing rates of compensation.
The employer may defend the wage rate when the sums paid to the full-time worker is based on a seniority or a merit system, or a system that bases compensation on the “quantity of quality” of production, or “any other factor apart from employment status.
The company is not allowed to reduce the wage of the full-time worker to resolve the complaint.
These same rules apply to a temporary help agency. The substance of these rules parallels the statutory terms dealing with alleged differences in pay based on gender.
Enforcement & Reprisal
A complaint may be made to the Ministry of Labour in the event the question is not resolved between the parties directly. The employer is not allowed to take any form of retaliatory action against the employee due to the making of the complaint. The Employment Standards Act contains a reprisal remedy which has a reverse onus provision. This requires the employer to prove that is innocent of the reprisal claim, as opposed to the employee proving otherwise. This is a significant remedy available to the employee facing adverse action such as termination due to the filing of a complaint, or threatening to do so.
This protective provision applies even where the employee has been treated adversely because he or she:
makes inquiries about the rate paid to another employee for the purpose of determining or assisting another person, or
discloses the employee’s rate of pay to another employee for the same purpose
Where reprisal has been found, in the case of termination of employment, the employee may be awarded lost wages to the date of the hearing and also be reinstated.
Let Preventive Advice Be Your Guide
Companies and employees alike must be familiar with these new rules. The employer must not only be prepared to create fair rates of compensation on these terms and also be ready to justify any apparent distinction in pay grades based on the exceptions noted above.
More importantly, employers must be diligent in treating any employee who has complained, threatened to complain or even made inquiries about wage differences, with fairness. The reprisal remedy is a very substantial one. To succeed in reprisal, it is not necessary to prove the underlying complaint, only that the employee was acting in good faith in the process. The wage claim in this remedy is a ticking clock. Although there are no aggravated damages awarded for such unfairness, as in a civil action, the wage claim to the date of hearing can be enormous, even without regard to the reinstatement remedy.
From the employee’s perspective, he or she must understand that not all wage differentials will lead to a remedy. The employer has many ways of defending the apparent distinction. The employee must proceed intelligently with prudence.
If you have questions about this issue of wage rates paid to part-time staff, whichever side of the fence you be on, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
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