In A Flash

Ontario Proposes New Minimum Standards for Gig Workers and Employee Monitoring Policies

On February 28, 2022, the Government of Ontario introduced Bill 88 – known as the Working for Workers Act, 2022 (“Working for Workers Act 2”) – which, if passed, would provide for a minimum wage and other foundational rights for digital platform workers who offer rides or deliver food and other items for companies like Uber, Lyft, Door Dash and Instacart.  Bill 88 also addresses the previously announced proposal for employers to establish written policies dealing with employee monitoring and certain other hard-hitting amendments to the Occupational Health and Safety Act (“OHSA”).

Proposed Rights for Digital Platform Workers

As it relates to digital platform workers – commonly referred to as “gig economy” workers – the Working for Workers Act 2 proposes to enact the Digital Platform Workers’ Rights Act, 2022, which itself would establish the following rights and protections for covered workers:

  • Minimum wage rate (not including tips)
  • Regular pay period and recurring pay day
  • All tips and gratuities collected within a pay period to be paid by that period’s pay day
  • Detailed information about how pay is calculated, and how and why a worker might be penalized in the allocation of work
  • Written notice before removing worker from digital platform, including written explanation as to why access is being removed
  • All disputes to be resolved in Ontario
  • Reprisal protection

If passed, the Digital Platform Workers’ Rights Act, 2022 would come into force on a day to be named by proclamation of the Lieutenant Governor.

Employee Monitoring Policies

Following a recent announcement that employers will be required to disclose their electronic monitoring of employees, Bill 88 also sets out the details of the proposed amendments to the Employment Standards Act, 2000 (“ESA”).  Specifically, the proposed ESA amendments, if passed,will require any Ontario employer who employs 25+ employees as of January 1st each year to ensure it has a written policy in place for all employees with respect to electronic monitoring of employees.  Employers will have six months from the date after the day the Working for Workers Act 2 receives Royal Assent to have a written policy in place, and every subsequent year the written policy is required to be in place by March 1st.

As proposed, the written policy will be required to contain the following information:

  • Whether the employer electronically monitors employees and if so,
    • a description of how and in what circumstances the employer may electronically monitor employees, and
    • the purposes for which information obtained through electronic monitoring may be used by the employer.
  • The date the policy was prepared and the date any changes were made to the policy.
  • Such other information as may be prescribed.

Employers that are required to have a written policy with respect to electronic monitoring will be required to provide a copy of the policy to each of their employees within 30 days of any new or amended monitoring policy being implemented.  New employees, including employees assigned by a temporary help agency, will need to be provided with a copy of the policy within 30 days of the day the employee becomes an employee of the employer.

If passed, the proposed requirement to have an employee monitoring policy would come into force on the date the Working for Workers Act 2 receives Royal Assent.

Additional Amendments

Other changes proposed by the Working for Workers Act 2 include:

  • Amending the Fair Access to Regulated Professions and Compulsory Trades Act to require regulated professions to make a registration decision for applications from out-of-province workers within 30 business days;
  • Increasing the maximum fines under the OHSA for operators and directors of businesses that fail to provide a safe work environment that leads to a worker being severely injured or dying on the job (discussed in more detail here);
  • Amending the ESA to expand military reservist leave to cover time spent training and reducing the amount of time they need to hold a job before having it protected from six (6) to three (3) months; and
  • Exempting certain business and information technology consultants from the application of the ESA, provided, among other things, that the consultant is paid at least $60 per hour, excluding bonuses, commissions, expenses and travelling allowances or benefits.

These proposals follow changes previously introduced by the Worker for Workers Act, 2021, which came into force in December 2021, including removing barriers for foreign-trained professionals, requiring policies on the “right to disconnect”, and banning the use of non-compete clauses.  The details of these previous changes are discussed here.

None of the changes proposed by Bill 88 are yet law.  Bill 88 passed the first reading on February 28, 2022.

We will continue to update our clients with information as soon as it becomes available. If you have any questions about the new legislation or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer.

The author gratefully acknowledges the assistance of Anthony Kwong, an Articling Student in the firm’s Toronto office.

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