Temporary Help Agencies

• ISBN: 978-1-4249-3383-9 (HTML)
• ISBN: 978-1-4249-3382-2 (Print)
• ISBN: 978-1-4249-3384-6 (PDF)
• Revised: November 2009
• Content last reviewed: November 2009
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This guide is provided for your information and convenience only. It is not a legal document. For complete information, refer to the Employment Standards Act, 2000 and its regulations.

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.^[1]

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.

^[1] 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.

The Employment Relationship

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.

A Work Assignment

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.

Information Assignment Employees Must Receive When Hired by an Agency

A temporary help agency must provide the following written information to an assignment employee as soon as possible after the person becomes an employee:

• the legal name of the agency, as well as any operating or business name of the agency (if it is different from the legal name);
• contact information for the agency, including its address, telephone number and one or more contact names; and,
• a copy of the information sheet published by the Director of Employment Standards entitled “Your Employment Standards Rights: Temporary Help Agency Assignment Employees”. If the language of the employee is one other than English, the temporary help agency must provide this document to the employee in that language, if it is available from the Ministry.

Information Assignment Employees Must Receive When Offered Work Assignments

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:

• the legal name of the client, as well as any operating or business name of the client (if it is different from the legal name);
• contact information for the client, including its address, telephone number and one or more contact names;
• the hourly or other wage rate or commission and benefits associated with the assignment;
• the hours of work;
• a general description of the work;
• the estimated term of the assignment (if known when the offer is made); and,
• the pay period and pay day.

This information can be provided verbally when the work assignment is offered, but must be provided in writing as soon as possible.

Prohibitions on Charging Fees to Assignment Employees and Restricting Assignment Employees from Accepting Employment with Clients

1. A temporary help agency is not allowed to charge a fee to an assignment employee, or prospective assignment employee, for:
   • becoming an employee of the agency;
   • the agency assigning or trying to assign the employee to perform temporary work for a client; or,
   • the agency providing the employee with help in preparing resumés or in preparing for job interviews, even if the employee is told he or she can choose whether to take that assistance or not.
2. An agency is prohibited from attempting to restrict an assignment employee from accepting direct employment with an agency client. It also cannot charge the employee a fee for accepting direct employment with a client of the agency.

Prohibitions on Charging Fees to Clients and Restricting Clients from Hiring Assignment Employees

1. A temporary help agency is not allowed to charge a fee to a client of the agency for entering into a direct employment relationship with an agency’s assignment employee unless the agency charges the fee during the first six months beginning on the first day the assignment employee first begins working for that client through the agency;
2. An agency is not allowed to restrict a client from entering into a direct employment relationship with an assignment employee.

Job References

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.

Public Holidays

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.

When Employee is on Assignment and a Public Holiday Falls on a Day that Would Ordinarily be a Working Day

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:

• have a right to their regular pay for that day and a substitute day off with public holiday pay; OR,
• get premium pay for every hour worked on the holiday plus public holiday pay.

When Employee is on Assignment and a Public Holiday Falls on a day that Would Not Ordinarily be a Working Day 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.

When a Public Holiday Falls on a Day when the Employee is not on an Assignment

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.

Termination of Employment

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.

Requirements during notice period

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,

1. In the case of a termination other than a termination resulting from a lay-off, the total amount of wages earned by the assignment employee in the 12 weeks before the employee’s last day of work for a client of the agency, divided by 12; or
2. In the case of a termination resulting from a lay-off, the total amount of wages earned by the assignment employee in the 12 weeks before the deemed termination date, divided by 12.The deemed termination date is the first day of the lay-off.

Pay in lieu of notice

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 Resulting from a Lay-Off

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:

• is not able to work;
• is not available for work;
• refuses an offer by the agency that would not constitute constructive dismissal;
• is subject to a disciplinary suspension; or,
• is not assigned to perform work for a client of an agency because of a strike or lock-out at the agency.

For information on how a lay-off results in termination of employment, please refer to temporary lay-off in the Termination of Employment Chapter.

Mass Termination

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.

Severance of Employment

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.

Calculating Severance Pay

To calculate the amount of severance pay an assignment employee is entitled to receive:

1.  
   • (a) take the employee’s total amount of wages earned for work done for clients of the agency during the 12-week period ending on the last day the employee did work for a client of the agency; OR
   • (b) in the case of a severance resulting from a lay-off, take the total amount of wages earned by the assignment employee in the 12 weeks before the first day of the lay-off;
2. divide the amount in 1(a) or 1(b) by 12;
3. multiply the result in 2 above by the lesser of 26 and the sum of:
   • the number of years of employment the employee has completed; and,
   • the number of completed months of employment, divided by 12, for a year that is not completed.

Severance Resulting from a Lay-Off

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:

• is not able to work;
• is not available for work;
• refuses an offer by the agency that would not constitute constructive dismissal;
• is subject to a disciplinary suspension; or,
• is not assigned to perform work for a client of an agency because of a strike or lock-out at the agency.

For information on how a lay-off results in the severance of employment, please refer to when severance occurs in the Severance Pay Chapter.

Reprisal by a Client of an Agency

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:

• intimidate the employee;
• refuse to have the employee perform work;
• refuse to allow the employee to start an assignment;
• terminate the assignment of the employee; or,
• otherwise penalize or threaten to penalize the employee

for any of the above stated reasons.

Enforcement of Temporary Help Agency Employment Rules

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:

• If an agency has charged an assignment employee or a prospective assignment employee a prohibited fee, an employment standards officer may issue an order to recover the fees for the employee;
• If an agency has:
  • interfered with the assignment employee getting direct employment with a client of the agency OR
  • prevented a client from providing a job reference for an assignment employee,
and the assignment employee has suffered damages as a result, an officer may order compensation for any loss incurred; and/or,
• If a client of the agency has reprised against (punished) an assignment employee, an officer may issue an order for compensation for any loss incurred and/or reinstatement in the assignment.

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