OVERVIEW

On Nov. 1, 2018, Bill 113, the Police Record Checks Reform Act, 2015, came into force in Ontario. Among other things, Bill 113 (the Act) standardizes the process for conducting police record checks, including checks requested by employers when screening an individual for employment purposes. The Act also limits the type of information that may be disclosed in response to a check.

These new changes could have a direct effect on employers, so it’s important to have a basic understanding of the Act.

BILL 113’s IMPACT ON POLICE RECORD CHECKS

As previously mentioned, Bill 113 looks to standardize how police record checks are performed. To accomplish this, the Act:

• Outlines and defines three types of record checks—Under Bill 113, police officials may conduct three types of police record checks:
  • Criminal record checks (includes applicable criminal convictions and findings of guilt under the federal Youth Criminal Justice Act)
  • Criminal record and judicial matters checks (includes applicable criminal convictions and findings of guilt under the federal Youth Criminal Justice Act, absolute and conditional discharges, outstanding charges, arrest warrants and certain judicial orders)
  • Vulnerable sector checks (includes information disclosed in a criminal record and judicial matters check, applicable findings of not criminally responsible due to a mental disorder, record suspensions related to sexually based offences and non-conviction-related information when a strict test is met)

• Requires consent before a check can be conducted—In order for a record check to occur under Bill 113, record check providers must receive written consent from the individual the record check pertains to:

1. Before the check is conducted; and
2. Before the record check provider discloses information authorized for disclosure by the Act to the requesting organization or person

• Specifies the type of information that can be disclosed in a record check—Bill 113 allows for the disclosure of certain types of information in relation to each type of check. However, Bill 113 only permits the disclosure of non-conviction information in response to a vulnerable sector check, provided the information satisfies the prescribed criteria for “exceptional disclosure.” Non-conviction information refers to details in instances where an individual was charged with a criminal offence, but the charge was dismissed, withdrawn, or resulted in a stay of proceedings or an acquittal. In the past, when potential employers carried out a police record check, they could receive a variety of non-conviction information, such as records of mental health detentions, complaints where charges were never laid, withdrawn charges and acquittals. This is no longer the case.
• Limits the use of information—Bill 113 prevents individuals and organizations from disclosing the results of a check. However, information may be disclosed should it be requested or authorized by law.

CONSIDERATIONS FOR EMPLOYERS

Employers need to ensure that policies and procedures related to police record checks are in accordance with the new, standardized process. Of all the changes made by Bill 113, the following are the most noteworthy for employers:

• Employers will no longer be able to obtain non-conviction information, unless the employer conducts a vulnerable sector check and the criteria for exceptional disclosure has been met.
• Employers may not use or disclose the results of the check, unless it is requested or authorized by law.
• Individuals being screened will be able to control the type of information disclosed.
• Written consent for checks must specify the type of check that the individual is consenting to.
• If a police record check is necessary, an employer will need to prepare for potential delays in obtaining the required information during the recruitment process.
• Employers must take their Human Rights Code obligations into consideration when requesting or performing police record checks.

To learn more about Bill 113, employers should visit the government’s official page on police record checks.

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Overview

On Nov. 22, 2017, the Government of Ontario passed Bill 148, the Fair Workplaces, Better Jobs Act, 2017 (Bill 148). Bill 148 made significant amendments to Ontario’s Employment Standards Act, 2000 (ESA) and Labour Relations Act, 1995 (LRA). Among other changes, Bill 148 raised the minimum wage, mandated equal pay for part-time, temporary, casual and seasonal employees doing the same job as full-time employees, and expanded job-protected leaves for employees throughout the province.

However, on Oct. 23, 2018, the Ontario government—under a new regime—introduced Bill 47, Making Ontario Open for Business Act, 2018 (Bill 47), which would repeal many of the changes established by Bill 148. The government hopes that, by removing certain statutory obligations of Bill 148, Bill 47 will reduce the burden on employers and bring jobs back to Ontario.

Amendments Proposed by Bill 47

If passed, Bill 47 will enact the following changes to the ESA and LRA, undoing much of Bill 148:

ESA

• Minimum wage—Minimum wage will remain at $14.00 per hour, at least until October 2020. From there, any increases will be tied to inflation.
• Scheduling—Bill 47 would repeal most of the scheduling provisions found in Bill 148 that were planned to come into force Jan. 1, 2019. Specifically, Bill 47 would repeal the right:
  • To request changes to schedules or work locations after an employee has been employed for at least three months
  • To receive a minimum of three hours’ pay for being on-call, particularly if the employee is available to work but is not called in to work
  • To refuse requests or demands to work or to be on-call, specifically on days an employee is not scheduled to work or to be on-call with less than 96 hours’ notice
  • To receive three hours’ pay if a scheduled shift or an on-call shift is cancelled within 48 hours before the shift was to begin
• Personal emergency leave—Bill 47 would replace current personal emergency leave entitlements with a package of eight unpaid annual leave days. These days are broken down as follows:
  • Three unpaid days for personal illness
  • Two unpaid bereavement leave days
  • Three unpaid days for family responsibilities
• Misclassification—Under Bill 148, a reverse onus was placed on employers during disputes over employment classification. This meant that it was up to employers to prove whether an individual was an employee or an independent contractor during any given dispute. Bill 47 would eliminate that onus for employers, instead shifting the burden of proof to the individual.
• Equal pay for equal work—Bill 47 would eliminate the equal pay provisions of the ESA that give part-time, casual, temporary and assignment employee status workers (temporary help agency status) the same entitlements as full-time, permanent workers. This would effectively remove the definition of “difference in employment status” from the ESA.
• Penalties for contravention—Bill 47 would reduce maximum administrative penalties for violations of the ESA from $350/$700/$1,500 to $250/$500/$1,000, respectively.

LRA

• Card-based certification—Bill 47 would give workers the right to vote via a secret ballot by repealing card-based certification on workers in home care, building services and temporary help agencies.
• Employee lists—Bill 47 would repeal rules that require employers to share their employees’ personal information to unions.
• Remedial certification—Bill 47 would reinstate pre-Bill 148 test and preconditions for the Ontario Labour Relations Board (OLRB) to certify a union as remedy for employer misconduct. The OLRB would also be required to determine whether a vote or new vote would be a sufficient remedy, or whether certification of the union would be the only sufficient remedy.
• Successor rights—Under Bill 47 changes, successor rights in contract tendering for publicly funded services would no longer apply.
• Structure of bargaining units—Bill 47 would repeal the power of the OLRB to review and consolidate newly certified bargaining units with existing bargaining units. Under the new rules, the OLRB would instead be empowered to review the structure of bargaining units where the existing bargaining units are no longer appropriate for collective bargaining.
• Return-to-work rights—Bill 47 would change return-to-work rights back to what they were prior to Bill 148. Specifically, an employee’s right to reinstatement following the start of a strike or lockout would be reduced to six months.
• First collective agreements/mediation and mediation-arbitration—The mediation, mediation-arbitration and educational-support provisions relating to first collective agreements would be repealed under Bill 47. Instead, pre-Bill 148 conditions related to the access of first agreement arbitration would be implemented.
• Fines—Bill 47 would reinstate previous maximum fines for offences under the LRA. As a result, fines would decrease from $5,000 to $2,000 for individuals and $100,000 to $25,000 for organizations.

What this Means for Employers

For the time being, employers should wait to update their policies and practices to reflect the changes proposed by Bill 47. Even if Bill 47 comes into force, employers are advised to seek the help of legal counsel before altering workplace practices.

To read the proposed changes in full, click here.

© Zywave, Inc. All rights reserved.