The Government of Ontario has announced a proposed amendment to the Ontario Employment Standards Act (“ESA”) which will strengthen the rights of remote workers. Specifically, it will extend the existing protection of enhanced notice during mass termination which was already in place for employees who do not work remotely.[1]
Pursuant to Section 58(1) of the ESA, employers who terminate 50 or more employees in a four-week period are required to give enhanced statutory notice of termination or pay in lieu in the amount of a lump sum equivalent to the wages of the notice period.[2] Terminations of this size are referred to as a “mass termination.” In an ordinary termination, an employer need only give one week of notice per year of service, up to eight weeks. Mass termination, however, defines the notice period by the number of employees terminated in the four-week period, and ranges from eight to 16 weeks depending on the size of the mass termination.
The inclusion of remote workers in the mass termination provision is brought about by an update to the definition of an employer’s “establishment” in the ESA to include employees’ remote home offices. Currently, the ESA defines the employer’s establishment only as “a location at which the employer carries on business…”[3]
The proposed amendment to the definition of “establishment” follows the remote work revolution which arose out of the pandemic. What had once been a relatively niche practice has become the standard for many workplaces. The amendment is a logical shift to provide the same protections to employees in like situations. Two employees doing the same job should not receive unequal treatment simply because one works remotely. Moreover, in the case of mass terminations involving pay in lieu of notice, the amendment removes an employer’s incentive to terminate remote workers over non-remote workers. Without this change, remote workers are potentially limited to a significantly shorter notice period (and smaller pay in lieu) than workers covered under the mass termination provision, making remote workers an easy target for termination.
The proposed amendment will also widen the instances which are considered mass termination events and when employees are entitled to the enhanced notice period. As remote workers are not presently considered to be terminated from an employer’s establishment, they are not factored into calculations for mass termination. As such, the amendment will extend protection to non-remote workers in situations where less than 50 non-remote workers are terminated, but the combined number of remote and non-remote workers who are terminated meets the 50 employee threshold. The proposed amendment is therefore beneficial to both remote and non-remote workers, and would be a welcomed win for employees.
-PC
[1] Government of Ontario, “Ontario Tightening Rules Around Mass Layoffs” (2023), online: Ontario Newsroom<https://news.ontario.ca/en/release/1002816/ontario-tightening-rules-around-mass-layoffs> [2] Employment Standards Act, SO 2000, c 41, s 58(1) [ESA]. [3] ESA, s 1.
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