Procom Consultants Group Ltd., one of Canada’s largest temporary help services firms, is facing a class action lawsuit of more than $800-million for violating the law by claiming workers as independent contractors and shortchanging them on overtime, vacation and public holiday pay.
Monkhouse Law has filed a statement of claim to certify the class action in the Ontario Superior Court of Justice, alleging that Procom violated the Employment Standards Act (ESA) by failing to track hours worked by the individuals and advise them of their entitlement to the extra pay.
In 2009, the Ontario legislature modified the ESA to provide that those working for temporary help agencies are employees and are entitled to minimum statutory protections. When the changes were debated in the Legislative Assembly, Members of Parliament stated:
“You have governments and employers in general that are trying to find ways around the legality of the law, and they have found one in the temporary employment agencies. The same way that governments, both federally and, I believe, provincially as well, used to use casual employment, you now have companies in the government and the private sector using the same thing with casual employees. The loophole needs to be closed…”
The present class action will test whether the loophole can be closed.
Why The Procom Class Action Lawsuit was Filed
The suit was filed on behalf of a woman who has worked for temporary placement agencies for numerous years. She worked alongside others who were full-time employees but did not receive vacation, holiday pay, nor benefits. The suit is filed on behalf of all individuals who were assigned work as independent contractors by the firm since 2009.
The woman and others like her were assigned to work for clients and required to sign a written contract that stated they were independent contractors. The firm also prohibited workers from entering into employment agreements at companies where they’d been placed. The suit alleges that the supervision and control imposed on workers created an employment relationship with Procom.
“This is a classic case of a company in a position of power taking advantage of workers in clear violation of the Employment Standards Act,” says Andrew Monkhouse, founder of Monkhouse Law.
According to the ESA, a temporary help agency is a worker’s employer when the person is assigned to do work on a temporary basis for a client, and the worker is entitled to vacation pay, statutory holiday pay and overtime pay. The class action is also requesting that the company be ordered to reimburse workers for CPP or EI contributions which are owed as a result of them being employees.
The class action is the sixth filed by Monkhouse Law against a Canadian company for shortchanging employees on vacation and public holiday pay. Class actions were previously filed against the Approval Team, Bank of Montreal, RBC Insurance Agency Ltd. and Aviva Insurance Co., RBC Life Insurance Co., and Medcan Health Management Inc.
Details of the Procom Class Action
The suit alleges that workers relied on Procom to advise them properly regarding their employee status and eligibility for vacation, public holiday and overtime pay, and the company failed in its statutory duties by incorrectly informing workers they were not employees of the firm. Allegations in the statement of claim must still be proven in court.
“Procom knew or ought to have known that the workers were being placed in temporary positions under the guise of being independent contractors,” Andrew Monkhouse said. “It’s a classic example of people being told they are contract workers and losing the protections of being employees.”
The Ontario Labour Relations Board has already ruled against Procom in a similar scenario. The company had sought to have a claim for wages rescinded from a consultant because Procom had entered into a contract for service and therefore the individual was not a temporary employee. However, the OLRB ruled the individual was an employee and therefore was owed wages.
The fresh as amended statement of claim is available here.
Updates:
By decision of the court rendered on June 9, 2021, the representative plaintiff was substituted, the decision is available here .
Contact Monkhouse Law
Are you a former Procom employee? You can have a confidential conversation about the class action by contacting Alexandra Monkhouse at 416-907-9249, ext. 211 or alexandra@monkhouselaw.com. Individuals can also complete a form below once active.
The news release can be seen here.
IMPORTANT – No action is required by employees to join this class action. In Ontario, class action lawsuits are an “opt out” system, so if this class action lawsuit is certified, all employees who fall under the class action definition will be members of the class unless they opt out.
Affected employees of Procom contractors can keep up-to-date on the employee class action lawsuit by filling out the form below: