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. The duration of the assignment does not matter. Such employees are called “assignment employees”.
Under the ESA, 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 agencies and clients of temporary help agencies.
This chapter provides information about the rights and rules that apply only 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
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. The fact that an assignment ends does not in itself mean that the employment relationship ends.
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.
An agency must record the number of hours an assignment employee worked for each client in each day and each week. The client(s) must also record the number of hours the assignment employee worked for them in each day and each week.
The agency and client(s) must retain those records for three years after the day or week to which the information relates. These records must be readily available for inspection by an employment standards officer, even if the agency and/or client(s) has arranged for another person to retain the records.
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.
Terms of a contract or an agreement (whether or not in writing) that impose any of the above fees or restrictions are void.
Temporary help agency assignment employees generally have the same public holiday rights as other employees. Please see Public Holidays for more information. YYou may also wish to refer to the Public Holiday Pay Calculator, available at Ontario.ca/ESAtools.
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 plus 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 only to public holiday pay 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.
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 termination rules apply only 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 ending on 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 going on longer than a “temporary 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 longer than a “temporary lay-off” . 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. Assignment employees may have a right to mass notice of termination if 50 or more have their employment terminated by their agency in a single four-week period because their assignments at a single client’s establishment ended.
Christine is one of 100 assignment employees who are assigned by ABC Staffing Services, a temporary help agency, for an anticipated ten-month period of work at one of its clients, DEF Manufacturing.
After six months, DEF Manufacturing changes its production plans and ends the assignments of the 100 ABC Staffing Services employees immediately. Because the assignments with DEF end, and ABC does not anticipate being able to find other assignments for 70 of its affected assignment employees, ABC terminates the employment of these 70 employees, including that of Christine, without notice.
The agency tells the remaining 30 employees that it will try to place them in other assignments, i.e., that it is maintaining its employment relationship with them.
The 70 employees that are being terminated are entitled to mass notice of termination. Because the number of employees who have been terminated is between 50 and 199, Christine and each of the other affected employees are entitled to eight weeks’ pay in lieu of notice.
Temporary help agency assignment employees generally have the same rights as other employees to severance pay. An employee is entitled to severance pay if his or her employment is severed, he or she has been employed for at least five years and certain other conditions are met. (The five-year threshold is based on the total time the employee is employed by the agency, not the duration of any particular assignment.) Please refer to “Severance Pay” for more information. However, some severance pay some rules apply only to assignment employees; they are described below.
To calculate the amount of severance pay an assignment employee is entitled to receive:
One of the ways in which a severance of employment may be triggered is by a lay- off that lasts for 35 weeks or more in a 52-week period[ 1 ]. 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 the employer of an assignment employee, a temporary help agency is not allowed to penalize an assignment employee for doing things such as asking questions about his or her ESA rights, filing a claim under the ESA or otherwise exercising his or her rights. Please refer to “Reprisals” for more information.
In addition, a client of a temporary help agency is not allowed to penalize 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 penalized them for, among other things, asking about or for their ESA rights, may file a claim with the Ministry of Labour. Please see the chapter “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:
As the employer of the assignment employee, the agency is liable for all wages that are unpaid. However, as of November 20, 2015, if an assignment employee performs work for a client and the agency fails to pay the employee for some or all of the wages owed for that pay period, the client(s) may be jointly and severally liable together with the agency for some or all of those unpaid wages. Specifically, clients may be liable for unpaid regular wages, overtime pay, public holiday pay and public holiday premium pay.
If an assignment employee performs work for more than one client in any pay period, each client is liable for an amount that is proportional to the hours worked for the client, relative to the total hours the employee worked for all clients of the agency, in that pay period.
[ 1 ] A severance can also be triggered by just one week of lay-off if the reason for the lay-off is because the employer is permanently discontinuing all of its business at an establishment. For more information, see "When Severance Occurs" in the Severance Pay chapter of this Guide.
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