Temporary help agencies employ people to assign them to perform work on a temporary basis for clients of the agency. Work assignments may be short-term, long-term or open-ended. Such employees are called “assignment employees”.
Under the Employment Standards Act, 2000, temporary help agency assignment employees generally have the same rights as other employees. There are also rules in the ESA that apply specifically to assignment employees, temporary help agency employers and clients of temporary help agencies. These rules became law on November 6, 2009.
This chapter provides information about the rights and rules that apply to assignment employees, temporary help agencies, and clients of temporary help agencies. Information about other rights and benefits under the ESA are found in other chapters within the Guide.
 Note: Part XVIII.1 (Temporary Help Agencies) does not apply in relation to an individual who is an assignment employee assigned to provide professional services, personal support services or homemaking services as defined in the Long Term Care Act, 1994 if the assignment is made under a contract between, (a) the individual and a community care access corporation within the meaning of the Community Care Access Corporations Act, 2001; or (b) an employer of the individual and a community care access corporation within the meaning of the Community Care Access Corporations Act, 2001.
Where a temporary help agency and person agree, verbally or in writing, that the agency will assign (or try to assign) the person to perform work on a temporary basis for its clients, the agency is the employer of that person and the person is an assignment employee of the agency.
Once there is an employment relationship between an agency and an assignment employee, the relationship continues whether or not the employee is on an assignment (working) with a client of the agency on a temporary basis. Employment ends only if the temporary help agency ends the employment relationship, or if the employee quits.
Joel and a temporary help agency agree on June 1st that the agency will try to find Joel temporary work with one of its clients. Two months pass before the agency assigns Joel to work for a client on August 1st. The client ends the assignment on September 1st. The agency does not terminate Joel’s employment and he does not quit.
One month goes by before Joel is given a second assignment on October 1st. The assignment ends on December 31st. The agency also gives Joel written notice that it is terminating his employment with the agency on that date.
In this scenario, Joel was an assignment employee with the temporary help agency (i.e., had an employment relationship with the agency) from June 1st to December 31st.
A work assignment begins on the first day the employee does work for, or receives training from, a client of the agency. It ends when the term of the assignment ends, or when the assignment is ended by the agency, the assignment employee, or the client.
A temporary help agency must provide the following written information to an assignment employee as soon as possible after the person becomes an employee:
A temporary help agency is also required to provide the following information to an assignment employee when offering him or her a work assignment with a client:
This information can be provided verbally when the work assignment is offered, but must be provided in writing as soon as possible.
A temporary help agency is not allowed to stop its client(s) from providing a job reference for an assignment employee.
Any written or verbal agency contract that includes such prohibited fees or restrictions is not valid regardless of whether the contract was entered into before or after November 6, 2009.
All temporary help agency assignment employees generally have the same public holiday rights as other employees. Please see Public Holidays for more information. You may also wish to refer to the Public Holiday Pay Calculator.
Generally, if a public holiday falls on a day when the employee is on an assignment and that day would ordinarily be a working day under the terms of the assignment, the employee is entitled to the day off with public holiday pay. Public holiday pay is all the regular wages earned and vacation pay payable in the four weeks before the week in which the holiday falls, divided by 20.
The employee may also agree, in writing, to work on the holiday and in that case will:
Two months after her last assignment, Munira is placed on a two-week assignment working Monday through Thursday each week. She is paid $1000 per week. The current assignment begins one week prior to the week Family Day occurs and ends the Thursday following the holiday. She would ordinarily have worked on the day the holiday fell (pursuant to her assignment) so is entitled to Family Day as a day off with public holiday pay for the day.
Her public holiday pay in this case is calculated as the regular wages she earned ($1000) plus any vacation pay payable ($0) within the period of four work weeks prior to the work week in which the holiday fell, divided by 20. Her public holiday pay for Family Day is $50.
If the employee is on assignment but the holiday falls on a day that is not ordinarily a working day for the employee, the employee will generally get a substitute day off with public holiday pay. The employee may also agree (in writing) to public holiday pay only.
Shana is on an assignment from March 1 to April 30, 2010 and is scheduled to work only Tuesdays and Thursdays of each week. She earns $1000 per week on this assignment. There is one public holiday during this assignment - Good Friday – which falls on the first Friday in April. Since Fridays are not days that she is ordinarily scheduled to work pursuant to her assignment, Shana is entitled to a substitute day off for Good Friday with public holiday pay calculated as if the substitute day was a public holiday.
The substitute day off must be scheduled within three months following the public holiday or within 12 months if Shana and her employer agree in writing. The public holiday pay is based on all the regular wages earned and vacation pay payable in the four work weeks prior to the week in which the substitute day is scheduled, divided by 20.
The substitute day off is scheduled for Thursday April 29. She earned $4000 in regular wages (no vacation pay was payable) in the four work weeks prior to the week she is scheduled to take the substitute day off and is therefore entitled to $200 in public holiday pay. Alternatively, Shana may agree (in writing) to public holiday pay only for Good Friday (with no substitute day off).
If the holiday falls on a day that the employee is not on assignment, the employee will generally be entitled only to public holiday pay for the holiday.
Willie ends a six-month assignment on Friday, February 12, 2010. He had been earning $800 a week while on that assignment. He is offered another assignment that begins on April 15, 2010, which he accepts. Family Day falls on February 15, 2010 but because he is on a lay-off when the holiday occurs, he is entitled to public holiday pay only for Family Day (no substitute day off).
The public holiday pay is calculated as the regular wages earned ($3,200) and vacation pay ($0) payable in the four work weeks prior to the week in which the holiday falls, divided by 20. In this case, Willie is entitled to $160 in public holiday pay.
All temporary help agency assignment employees generally have the same rights as other employees to notice of termination. Please refer to Termination of Employment for more information. However, some rules apply specifically to assignment employees; they are described below.
During each week of notice, an assignment employee is entitled to be paid of the wages he or she is entitled to receive, which cannot be less than,
If the employee is being terminated without working notice, pay in lieu of notice is calculated as the amount of wages earned in the 12 weeks before the employee’s last day of work for a client of the agency or, in the 12 weeks before the deemed termination date, if the termination is triggered by a lay-off, divided by 12, and multiplied by the number of weeks of notice to which the employee is entitled.
Termination of employment may be triggered by a lay-off that lasts a certain number of weeks. An assignment employee is considered to be on a week of layoff if he or she is not assigned by the agency to perform work for a client of the agency during that week. A week is not counted as a week of layoff (i.e., is an “excluded” week) if, for one or more days, an assignment employee:
For information on how a lay-off results in termination of employment, please refer to temporary lay-off in the Termination of Employment Chapter.
A temporary help agency assignment employee may also have a right to mass notice of termination of eight, 12 or 16 weeks if he or she is part of a termination of 50 or more assignment employees by the agency within a four-week period.
All temporary help agency assignment employees generally have the same rights as other employees to severance pay. Please refer to Severance Pay for more information. However, some rules apply specifically to assignment employees; they are described below.
To calculate the amount of severance pay an assignment employee is entitled to receive:
Severance of employment may be triggered by a lay-off that lasts a certain number of weeks. An assignment employee is considered to be on a week of layoff if he or she is not assigned by the agency to perform work for a client of the agency during that week. A week is not counted as a week of layoff (i.e., is an “excluded” week) if, for one or more days, an employee:
For information on how a lay-off results in the severance of employment, please refer to when severance occurs in the Severance Pay Chapter.
As an employer of an assignment employee, a temporary help agency is not allowed to reprise against (punish) an assignment employee for doing things such as asking questions about his or her ESA rights, filing a claim under the ESA or otherwise asserting his or her rights. Please refer to Reprisals for more information.
In addition, a client of a temporary help agency is not allowed to reprise against (punish) a temporary help agency assignment employee because, for example, he or she has asked about his or her ESA rights, asserted those rights, or asked the client or the agency to comply with the ESA. That means a client is not allowed to:
for any of the above stated reasons.
Assignment or prospective assignment employees who believe their agency is not complying with the ESA, and assignment employees who believe the agency or a client of the agency has reprised against (punished) them for asking, among other things, about or for their ESA rights, may file a claim with the Ministry of Labour. Please see Filing an Employment Standards Claim for more information.
For information on how rights under the ESA are enforced, please refer to the Role of the Ministry of Labour.
There are additional ways the Ministry of Labour can enforce the ESA when there are violations of some of the rights specific to assignment employees: