2021: Key Developments in Employment Law

With a new year comes new laws and regulations across Canada. These changes will impact employers and employees at both the federal and provincial levels, introducing better working conditions and wage fairness. We expect that these changes will have an impact on a wide range of employment issues, including in relation to workplace harassment and violence, terminations, and wrongful dismissals.

Accordingly, we review the significant changes to expect in 2021.

The Canada Labour Code

The Workplace Harassment and Prevention Regulations

Pursuant to the Canada Labour Code (the “CLC”), the Workplace Harassment and Violence Prevention Regulations (the “Regulations”), outline the essential elements of a workplace harassment and violence prevention policy as well as the procedures that must be in place to respond to these incidents. The Regulations, operative January 1, 2021, require federally-regulated employers to investigate, record, report, prevent and provide training with respect to workplace violence and harassment, including sexual harassment and sexual violence.

Specifically, the Regulations impose the following obligations on federally-regulated employers:

• Risk Assessments: Employers and applicable partners (policy committee, workplace committee or health and safety representative) must identify risks of harassment and violence and develop prevention measures. Within six (6) months of the assessment, the employer and partner must jointly develop and implement preventative measures. The assessment and corresponding prevention plans must be reviewed and updated every three (3) years.
• Workplace Policies: Employers must have a policy in place to address harassment and violence. The policy must include specific components outlined in the regulations including, but not limited to, support measures, emergency procedures, resolution process, training, and mission statement. The policy must be readily available to all employees.
• Training: Employers must train their workforce on harassment, violence, and human rights protections. For example, new employees must be trained within three (3) months of being hired and existing employees within one (1) year of the Regulations being in force. Training must be completed by an employee every three (3) years.

The Regulations create significant obligations for employers, and we expect that they will have an impact on future cases, including those related to unjust dismissal and wrongful termination.

Exemptions from and Modifications to Hours of Work Provisions Regulations

The CLC was amended in 2019 to specify the rest time between shifts and the amount of notice an employer must give to an employee with respect to scheduling and/or changes to the schedule. Proposed amendments to the hours of work provisions have since been introduced to recognize the realities of industries that require more flexibility in work hours.

The proposal introduces exemptions for the marine, road transportation, courier, and grain sectors to allow employers, when necessary, to give employees a shorter rest period between shifts or a lesser notice period when there are shift changes.

The proposed amendments will likely come into force in Summer 2021.

The Wage Earner Protection Program Act

The proposed amendments to the Wage Earner Protection Program Act will expand eligibility for the Wage Earner Protection Program (“WEPP”) by extending coverage to workers who are owed wages when their employer files bankruptcy or enters receivership.

The WEPP is intended to ensure that individuals can make a claim for unpaid wages up to a maximum amount if their employer becomes bankrupt or subject to receivership.

The proposed amendments are anticipated to come into force in Spring 2021 and would broaden the coverage of the WEPP by:

• Enabling earlier payments when an employer engages in liquidating or restructuring proceedings;
• Extending coverage to individuals if their employer enters formal insolvency proceedings in another country; and
• Updating the payment of trustee and receiver fees for low-asset insolvencies so that more individuals can access the WEPP.

The overall goal of the amendments is to reduce delays and improve access to the WEPP as well as ensure that employees working in Canada for companies that are subject to insolvency proceedings in another country are not excluded from accessing WEPP.

The Pay Equity Act

The Pay Equity Act (the “Act”) and the proposed Pay Equity Regulations (the “Regulations”), which are expected to come into force effective later in 2021, are aimed at closing the gender wage gap and ensuring that men and women in federally regulated workplaces are, on average, receiving equal pay for work of equal value.

The proposed Regulations include, but are not limited to, the following:

• Posting requirements: Employers must ensure that key documents are accessible to all employees and that they remain posted in the workplace to ensure the pay equity process remains participatory and transparent in nature.
• Time limits for applications and notice: Applications and notices are to be submitted to the Privacy Commissioner without delay.
• Mathematical factors for comparing compensation: The comparison of compensation will be completed by using certain methods as outlined in the Act and will determine pay increases owed.
• Steps to follow when regression lines cross: Employers will be provided with steps to follow to complete compensation comparison analyses.
• Method for developing a pay equity plan when there are no predominantly male job classes: Employers or pay equity committees without a male comparator will be permitted to establish a pay equity plan and achieve pay equity in their workplace.
• Pay equity plan maintenance process: Employers will be provided with steps to follow to update a pay equity plan and determine if pay equity gaps arose since the posting of the most recent version of a pay equity plan.

The goal of these new measures is to increase transparency as well as to help federally regulated employees feel safe, value, secured and included within the workplace. Employees who have been unjustly dismissed or wrongfully terminated for enforcing their pay equity rights should speak with experienced employment counsel about filing a complaint with the Pay Equity Office.

Ontario’s Employment Standards Act, 2000 (the “ESA”)

On October 1, 2021, Ontario’s minimum wage will be adjusted to $14.25 per hour to reflect annual inflation. Employers are encouraged to review employment contracts to ensure that they are complying with the changes and likewise, we recommend that employees remain up-to-date and informed about their rights and when the changes will take effect.

What’s Next

Given the significant changes expected to occur in 2021, we recommend that both employers and employees remain aware of their rights and responsibilities and ensure compliance with the new laws coming into force. We also encourage both employers and employees to stay up-to-date with employment law news as it is important to promoting better working conditions, modernizing standards and ensuring wage fairness.

If you are seeking assistance with respect to any employment matters relating to the changes occurring in 2021, please contact Toronto employment lawyers, Sultan Lawyers, at (416) 214-5111 or here.