New Ontario Leave & Employee Tip Legislation

Source: Canadian Payroll Association

ONTARIO INTRODUCES LEGISLATION FOR TWO NEW LEAVES FOR DEATH OF A CHILD AND DOMESTIC VIOLENCE

On March 8, 2016, the Ontario Legislature introduced two bills, Bill 175, Jonathan’s Law (Employee Leave of Absence When Child Dies), 2016 and Bill 177, Domestic and Sexual Violence Workplace Leave, Accommodation and Training Act, 2016. The bills provide for new leaves under the Employment Standards Act, 2000 and new training obligations under the Occupational Health and Safety Act.

Bill 175, Leave of Absence for the Death of a Child

An employee who has been employed by his or her employer for at least six consecutive months will be entitled to a leave of absence without pay of up to 52 weeks if a child of the employee dies. The definition of a “Child” includes children, step-children and foster children under the age of 18.

This Act comes into force on the day it receives Royal Assent.

Bill 177, Leave for Victims of Domestic and Sexual Violence

The provisions within this legislation will require employers, under certain circumstances, to provide a leave of absence of a “reasonable duration” to employees or their children who have experienced domestic or sexual violence. Domestic violence or sexual violence leave will provide employees with up to 10 days of paid leave per calendar year.

Some of the features of this legislation would provide the employee with:

• Medical attention related to the violent or sexual act they endured;
• To seek legal or law enforcement assistance for the employee or the employee’s child, including preparing for or participating in any civil, criminal or administrative proceeding related to or resulting from the violence; and
• Temporary or permanent relocation for the purpose of reducing or eliminating the threat of future violence.

These new legislative measures will require employers to ensure that managers, supervisors and workers are well informed about domestic and sexual violence in the workplace. This Act comes into force three months after the day it receives Royal Assent.

HR Options will continue to monitor and update our readers on any developments relating to these new bills.

NEW RULES PREVENT EMPLOYERS FROM KEEPING A PORTION OF EMPLOYEE TIPS

Effective June 10, 2016, it will be illegal for employers to keep a portion of employees’ tips and other gratuities, except as permitted by the Employment Standards Act, 2000 (ESA). These rules affect employers and employees covered by the ESA in workplaces where tips and gratuities are received – such as at bars, restaurants, hair and nail salons, catering firms and taxis. The changes come as a result of Bill 12, Protecting Employees’ Tips Act, 2015.

What are Considered Tips and Gratuities?

Tips and gratuities include money voluntarily given by a customer for customer service. It could be given to the employee directly, like money left on a table or bar for a server, or it could be given to the employee indirectly, like a tip paid using electronic payment like debit or credit, or in a tip jar.

Tips and gratuities can also include any service charges imposed by an employer on a customer that the customer intends or assumes would be given to employees (e.g., banquet hall service fees, catering service fees, group table service charges).

What Will be Prohibited?

Employers will be prohibited from withholding, making deductions from, or causing the employee to return tips and other gratuities. There are two situations in which this prohibition does not apply:

1. If the employer collects and redistributes the money among its employees, a practice often referred to as “tip pooling.”
2. If a statute or a court order authorizes it.

Employers cannot make deductions from tips for things like faulty work, cash shortages, or lost or stolen goods. Employers will generally be prohibited from sharing in a tip pool. The exception is if the employer owns all or part of the business, and he or she regularly performs the same work to a large degree of:

• Some or all of the employees who share in the tip pool; or
• Those in the same industry who would normally receive tips.

For example, this exception would apply if a restaurant owner spent a substantial amount of his or her time serving food or in the kitchen doing the same work as staff members who receive a portion of a tip pool. The same standard applies to directors and shareholders of corporations. 
The Ministry of Labour is currently seeking input on a proposal to exclude credit card processing fees from tips.

A Fact Sheet containing the above-mentioned information can be obtained at The Ontario Ministry of Labour’s Employment Standards website.