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Fairness For Temporary Help Agency Employees

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Fairness For Temporary Help Agency Employees

New legislation comes into force today that will ensure temporary help agency employees are treated fairly and have a better chance to move to sustainable employment.

The Employment Standards Amendment Act (Temporary Help Agencies), 2009, amends the Employment Standards Act, 2000 (ESA) to add a number of provisions affecting temporary help agency employees.

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

More than 640,000 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 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.


REMOVING BARRIERS TO PERMANENT EMPLOYMENT

The amendments prohibit temporary help agencies from imposing barriers that prevent or discourage clients of agencies from hiring "assignment employees".  Temporary help agencies will now 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, and
  • Restricting a client from providing references for an assignment employee.

Any provisions in temporary help agency contracts with assignment employees or clients that violate the above prohibitions are void.


PROHIBITING AGENCIES FROM CHARGING FEES TO THEIR EMPLOYEES

Under the amendments, temporary help agencies will now be prohibited from:

  • Charging a fee to a person for becoming an assignment employee, or for 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

The amendments require temporary help agencies to:

  • Provide 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.
  • Provide an information sheet to employees prepared by the Director of Employment Standards on an assignment employee's ESA rights.
  • Provide an employee, in writing, with the client's name and contact information as soon as possible after offering a work assignment.  The agency will 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 the Employment Standards Act, 2000 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 an employee's employment standards rights are met.

The amendments prohibit clients of agencies from engaging in reprisals against assignment employees for asserting their employment standards rights.  The agency, as the employer, continues to be prohibited from reprisals against its employees under the ESA.

If a temporary help agency owes an assignment employee wages, and if a client owes the agency money, the Director of Employment Standards is able 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

Before today, regulations under the ESA provided that employees who "may elect to work or not [to work] when requested to do so," were exempt from the ESA requirements regarding notice of termination and severance pay.  Many temporary help agency employees were considered by the agencies to be "elect to work" and were treated as being exempt from requirements around termination and severance.  A new regulation has now removed the "elect to work" exemption regarding termination and severance.  As a result, assignment employees may be entitled to notice of termination, pay in lieu of notice and severance pay, depending on the circumstances of their employment.

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

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