Fairness For Temporary Help Agency Employees

The nature of work has changed in the past decade or so, and today, temporary employees are an important part of Ontario's workforce. More than 700,000 people in the province have temporary jobs, many through temporary help agencies which provide their workers to client businesses that want staff on a non-permanent basis. There are about 1,000 agencies currently operating in Ontario.

Work through temporary help agencies has also changed:

• In the 1970s and 1980s, employment through temporary help agencies was mostly in short-term, clerical jobs that lasted a few days or weeks. Temporary help agency workers were called in when regular staff members were away sick or on vacation. Today, agencies supply workers in a wide range of occupations
• An employee of an agency might be assigned to a single client business for several months, or even years
• In many cases, agency employees work side-by-side with the staff of an agency's client business, doing the same type of work.

The McGuinty government has put forward proposed legislation that, if passed, would ensure that temporary help agency employees are being treated fairly. This legislation would amend the Employment Standards Act, 2000 (ESA) to change a number of provisions affecting temporary help agency employees.

These changes to the ESA are a component of the government's Poverty Reduction Strategy, which is about creating more opportunity and building a stronger economy.

REMOVING BARRIERS TO PERMANENT EMPLOYMENT

During the consultations on work through temporary help agencies, concerns were raised that temporary agency employees face barriers to permanent employment. Examples given include:

• Significant "temporary to permanent" fees charged to client businesses of agencies or employees of agencies
• Contract rules that prevent agency employees being hired by client businesses
• Prohibitions on client businesses providing reference letters for agency employees.

The proposed legislation would prohibit temporary help agencies from imposing barriers that would prevent or discourage clients of agencies from hiring "assignment employees". If the proposed legislation passes, temporary help agencies would be prohibited from:

• Restricting a client from providing a permanent position to an agency's assignment employee, or charging the client a "temporary to permanent" fee after six months or more have passed since the employee was first assigned to the client
• Restricting an assignment employee from taking permanent employment with a client of the agency, or charging the employee a fee for doing so
• Restricting a client from providing references to an assignment employee or entering into a permanent employment relationship with an assignment employee

Any provisions in temporary help agency contracts with assignment employees or clients that violate the above prohibitions would be void once this legislation comes into force.

PROHIBITING AGENCIES FROM CHARGING FEES TO THEIR EMPLOYEES

Currently, a temporary help agency may ask a person to pay a fee for helping him or her find a temporary assignment. Agencies may also charge fees for other services, such as classes on resume writing or preparing for interviews.

Under the proposed legislation, temporary help agencies would be prohibited from:

• Charging a fee to a person for becoming an assignment employee, or assistance in finding or attempting to find work with a client
• Charging a fee to an assignment employee, or prospective assignment employee, for assistance in preparing a resume or preparing for job interviews.

PROVIDING INFORMATION TO EMPLOYEES

There are currently no rules about what information temporary help agencies must give their employees when they are sent to client businesses on assignments. As well, quite often, employees do not know the legal name of the agency where they are working.

The proposed legislation, if passed, would require temporary help agencies to:

• Provide the employees, in writing, with the agency's name and contact information as soon as possible after the agency enters into an employment relationship with the employee.
• Agencies would also be required to provide an information sheet prepared by the Director of Employment Standards on the assignment employee's ESA rights.
• Provide the employee, in writing, the client's name and contact information when offering a work assignment. The agency would also be required to provide information on wages, benefits, hours of work and the pay schedule associated with the assignment, as well as a general description of the work to be performed for the client.

PROTECTING EMPLOYMENT STANDARDS RIGHTS

Under current legislation, a temporary help agency is generally considered to be the employer of a person it sends to work for a client business. The client business is not the employer. The agency is responsible for making sure that a worker's employment standards rights are met.

However, the proposed legislation would prohibit clients of agencies from engaging in reprisals against assignment employees for asserting their employment standards rights. The agency, as the employer, would continue to be prohibited from reprisals against its employees, under current provisions of the ESA.

If a temporary help agency owes an assignment employee wages, and if a client owes the agency money, the proposed legislation would allow the Director of Employment Standards to make a demand on the client to pay those monies to the Director in trust, for dispersal to the employee.

REVOKING "ELECT TO WORK" EXEMPTIONS

Currently, the ESA contains special rules for certain employees. Employees who "may elect to work or not [to work] when requested to do so", were exempt from the ESA requirements regarding public holidays, and notice of termination and severance pay.

Many temporary help agency employees were considered to be "elect to work" since they could choose to accept or refuse an agency assignment without any negative consequences. However, once an assignment was accepted, those employees were required to report to work as directed by the client business as a condition of its contract with the agency. Because they were considered "elect to work", these employees were exempt from full public holiday entitlements, and requirements around termination and severance.

The government has now made a regulation removing the "elect to work" exemptions regarding public holidays, effective January 2, 2009, ensuring that temporary help agency employees will have the same rights to public holiday entitlements as other employees in Ontario.

If the proposed legislation should pass, the government intends to enact another regulation removing the "elect to work" exemptions regarding termination and severance.