Working for Workers: Understanding Bill 88 in Ontario

For employers in Ontario, the pace of change continues to gain speed. On February 28, 2022, the Ontario government introduced Bill 88, Working for Workers Act, 2022 (“Bill 88”). If passed, Bill 88 would amend the Employment Standards Act (the “ESA”), the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, and the Occupational Health and Safety Act. Most notably, however, Bill 88 seeks to enact brand-new legislation, the Digital Platform Workers’ Rights Act, 2022 (the “DPWRA”).

Based on Bill 88’s first reading, the legislation addresses a perceived unfairness for workers operating within the ever-growing “gig economy.” These workers have traditionally been exempted from minimum employment standards. It also seems to build on the Ontario government’s introduction of mandatory right-to-disconnect policies, with an additional mandatory policy relating to the electronic monitoring of employees. We’ve set out an overview below. 

The Digital Platform Workers’ Rights Act, 2022

The DPWRA seeks to regulate the gig economy and provide employment standards for digital platform workers. The stated purpose of the DPWRA is to establish minimum basic rights for workers who perform digital work.

“Digital platform work” is defined under the DPWRA as, subject to the regulations, 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. A “worker” is broadly defined as, subject to the regulations, an individual who performs digital-platform work and includes a person who was a worker. An “operator” is defined as, subject to the regulations, a person that facilitates, through the use of a digital platform, the performance of digital platform work by workers, but does not include a temporary help agency within the meaning of the ESA.

Under the heading of “Workers Rights,” there are seven distinct types of rights that the DPWRA seeks to provide to digital platform workers: (1) The right to information; (2) The right to a recurring pay period and payday; (3) The right to minimum wage; (4) The right to amounts earned by the worker and to tips and other gratuities; (5) The right to notice of removal from an operator’s digital platform; (6) The right to resolve digital platform work-related disputes in Ontario; and (7) The right to be free from reprisal.

Although it is beyond the scope of this article to conduct a full assessment of the DPWRA, an overarching theme is increasing digital platform workers’ access to information in regard to their duties, wages, procedures for allocation of work, work performance indicators, etc.

On this point, section 7 of the DPWRA, entitled Right to Information, requires a digital platform operator to provide the following information to workers within 24 hours after an individual is granted access to an operator’s digital platform for the purposes of performing digital platform work: (1) A description of how pay for digital platform work is calculated; (2) Whether tips or other gratuities are collected by the operator and, if so, how they are collected; (3) The recurring pay period and recurring payday established by the operator under Section 8 of the DPWRA; (4) Any factors used to determine whether work assignments are offered to workers and a description of how these factors are applied; (5) Whether the digital platform uses a performance rating system and whether there are consequences of such performance or the worker’s failure to perform a work assignment, and a full description of such consequences; and (6) Such other information as may be prescribed.

Lastly, addressing the implementation of a mandatory minimum wage for digital platform workers, Section 9 of the DPWRA notes that an operator shall pay workers at least the minimum wage payable under section 23.1 of the ESA, for the class of employees set out in subparagraph 1(iv) of that section, an amount equal to $15.00 per hour.

More to come.  But it is clear that the thrust of the legislation is to fill gaps with respect to minimum rights and employment standards.  

Amendments to the Employment Standards Act, 2000, and the Introduction of Employee Monitoring Policies

Bill 88 also seeks to amend the ESA through the inclusion of section 41.1.1, Written policy on electronic monitoring, and requires employers, who on January 1 of any year employ 25 or more employees, to develop a written policy for all employees with respect to electronic monitoring of employees before March 1 of that year. Notably, “electronic monitoring” is not a defined phrase under Bill 88, creating some ambiguity.   

In regards to the content of any policy on electronic monitoring of employees, subsection 2 of this section clarifies that any written policy with respect to electronic monitoring must contain the following information:

1. Whether the employer electronically monitors employees and if so,
   • a description of how and in what circumstances the employer may electronically monitor employees, and
   • 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.
3. Such other information as may be prescribed.

Under subsection 3, 4 and 5, an employer must provide copies of their written policies to existing employees, new employees and any assigned employees engaging with the employer via a temporary help agency. The policy must be provided to such groups of individuals within varying time frames depending on employee classifications but, generally speaking, within 30 days from the date of implementation of the policy or the hiring or assignment of a new employee. Further, if an existing policy is changed, a copy of the same must be provided to employees within 30 days of the changes being made.

Subsection 6 of this section, entitled Complaints, clarifies that any complaint brought under section 96(1) of the ESA alleging contravention of this section may only be made with respect to subsection 3,4, or 5, in regard to an employer’s duty to provide copies of any policy in a timely fashion to existing employees, newly hired employees or employees engaged via a temporary help agency.

Notably, Subsection 8 of this section, entitled Use of Information, is clear that nothing in this section affects or limits an employer’s ability to use information obtained through electronic monitoring of its employees.

Lastly, and similar to the process adopted for mandatory right-to-disconnect policies, employers will have until a date that is six months after the date Bill 88 receives royal assent, instead of March 1 of that year, to comply with the abovementioned requirements, establish a written policy with respect to electronic monitoring and determine whether it employs 25 or more employees as of the January 1 immediately preceding the date described above.

Exemptions from the Employment Standards Act: Business Consultant and Information Technology Consultant

Bill 88 amends the ESA to add the following definitions of “business consultant” and “information technology consultant”:

“business consultant” means an individual who provides advice or services to a business or organization in respect of its performance, including advice or services in respect of the operations, profitability, management, structure, processes, finances, accounting, procurements, human resources, environmental impacts, marketing, risk management, compliance or strategy of the business or organization; (“conseiller commercial”).

“information technology consultant” means an individual who provides advice or services to a business or organization in respect of its information technology systems, including advice about or services in respect of planning, designing, analyzing, documenting, configuring, developing, testing and installing the business or organization’s information technology systems; (“conseiller en technologie de l’information”).

Bill 88 also amends section 3 of the ESA to include “business consultant” and “information technology consultant,” as defined above, as classifications that may be exempt from application of the ESA if the following conditions are met. For clarity, section 3 of the ESA is entitled How this Act Applies and delineates classifications of individuals/employees who are under the purview of the ESA. Under Bill 88, a “business consultant” or “information technology consultant” may be exempt from the application of the ESA if:

1. The business consultant or information technology consultant provides services through,
   • a corporation of which the consultant is either a director or a shareholder who is a party to a unanimous shareholder agreement, or
   • 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.

While this particular development in Bill 88 has not been extensively discussed as of yet, when compared to the enactment of the DPWRA or the electronic monitoring of employees, this may be a double-edged sword. On the one hand, it seems to automatically exempt a large grouping of business and information technology consultants from the ESA who meet the criteria. On the other hand, it appears to establish a higher threshold for such business and information consultants to be granted exemption status and indicates that such individuals who do not meet the threshold may be subject to the ESA.

Bill 88 is only on its first reading and has yet to be extensively reviewed or amended by the provincial legislature. It remains to be seen how the DPWRA and other proposed amendments to existing legislation will develop as Bill 88 progresses through the legislative stages to become law in Ontario. But one thing is for sure: employers will have more work to do to ensure compliance with minimum standards (once those minimum standards are fully understood).