Employment Standards Act 2000

1. Employment Standards Act2000 Gisele Nicholls Regional Program Coordinator Ministry of Labour Gisele.Nicholls@mol.gov.on.ca 1-800-263-6906 or 905-577-1231

2. The Employment Standards Act, 2000 (ESA) sets minimum standards for wages and conditions of employment in Ontario, such as: Minimum wage Hours of Work Public Holidays Vacation Pay Overtime Pay Notice of Termination Severance Pay Leaves of Absence The ESA covers most employers and employees in Ontario. There are special rules in many parts of the ESA and the regulations. These rules provide for special provisions or exempt certain employees from certain parts or all of the ESA.

3. Overview of the ESA • Generally, the ESA: • Sets out the rights and responsibilities of employees and employers in Ontario workplaces • Provides ways for employers to work with employees to design more flexible work arrangements • Provides greater flexibility for hours of work overtime, vacations and public holiday in order to meet work and family commitments • Provides unpaid, job-protected emergency and family medical leave • Provides new enforcement provisions and maximum fines

4. Posting Requirement Employers must post documents in the workplace outlining the rights and obligations of employers and employees under the ESA, 2000 The Ministry has prepared a poster called “What You Should Know About The Ontario Employment Standards Act” Employers are required to post this document in the workplace in a place where it is likely to come to the attention of their employees (currently unavailable)

5. Types ofagreements • To exceed daily and weekly hours of work limits • Employee may revoke with two weeks written notice • Employer may revoke with reasonable notice • To average hours of work over a period of up to 4 weeks for purposes of overtime pay • Must have an expiry date • Mutual revocation required • To compensate overtime hours in time off • To take vacation time in increments of less than one week • To pay vacation pay on every pay • To defer banked overtime earned or substituted public holiday days

6. Agreements in Writing Any agreement between an employer and an employee, as provided in the ESA, must be in writing unless it is otherwise indicated. Components of an agreement: • No retroactive application • Signatures • Electronic • Specificity • Informed consent • Coercion • Revocability (with some exceptions)

7. Payment of Wages Employers must establish a regular pay period and pay day Employers may pay wages by: -cash or cheque at the workplace or agreed alternate location -direct deposit when employee has reasonable access to a financial institution If employment ends, the employer must pay all wages owing no later than 7 days after employment ends, or the next pay date, whichever is later

8. Payroll Deductions An employer may only make deductions from an employee's wages where: 1. The employee’s written authorization to deduct wages refers to a specific amount or provides a formula from which a specific amount may be calculated 2. A statute or court order authorizes the employer to make a deduction In some cases, the employer can‘t make deductions from an employee's wages even if the employee agrees to them A payroll deduction for remittance to a third party is not valid unless the remittance is actually made

9. Wage Statements Employer must provide a pay slip – may be electronic – which must include among other things, the pay period, gross and net pay, deductions and the reasons for the deductions • In addition to the above, upon termination, the employer must provide a statement outlining the following: • termination pay, if any • severance pay, if any • vacation pay, if any • how these amounts have been calculated (unless provided in some other method)

10. Payroll Records Employers are required to keep employment records for three years. Records must include information such as each employee's name, address, first day of employment, hours worked each day and week, vacation pay paid, and vacation time earned/taken. The date of birth must also be recorded if the employee is a student and under 18 years of age. Employment records must be available for inspection by an employment standards officer. Employers are no longer required to keep the records in Ontario.

11. Hours of Work • Employees can only be required to work up to: • eight hours a day or • where the establishedregular day is more than eight hours, that many hours • 48 hours in a work week • Special rules allow for longer daily or weekly hours to be worked where there is a written agreement between an employer and an employee. Some agreements require approval from the Director of Employment Standards. • Only in certain exceptional circumstances (e.g. to deal with an emergency) can an employer require an employee to work longer hours.

12. Applications for approvals as of March 1, 2005 • An application for hours of work in excess of 48 hours per week and overtime averaging over more than a two week period must be filed with the Director of Employment Standards Branch effective March 1, 2005. • Application forms are available on line, district offices and government information centres at no charge. • With the application form the appropriate written agreement between the employer and and employees must be submitted and the processing time is 30 days for approval or refusal. • Agreements in effect cease on March 1, 2005 with the exception of certain agreements with an expiry date. • No change to daily hours of work or revoking agreements, eating periods and rest periods between shifts.

13. Free Time • Employees must be free from work as follows: • 11 consecutive hours a day; • 8 hours between shifts unless the total time worked does not exceed 13 hours or they agree otherwise; • 24 consecutive hours a week or 48 consecutive hours in a two-week period. • Eating Periods • Employees can’t work more than five consecutive hours without getting a meal break. This break must be at least 30 minutes long. • If agreed, the 30-minute meal break may be taken as two shorter breaks within each period of five hours.

14. Overtime Pay • Most employees are entitled to overtime pay after they have worked more than 44 hours in a week. Overtime pay is at least 1½ times the regular rate of pay. • Instead of being paid overtime pay, employees can agree with their employer, in writing, to be compensated for overtime hours by taking 1½ hours of paid time off for each hour of overtime worked. • In order to determine an employee’s entitlement to overtime pay, an employer and an employee may agree, in writing, to average the employee’s hours of work over a period of not more than two weeks. • An employee and an employer may agree, in writing, to a longer averaging period if the agreement is approved by the Director of Employment Standards.

15. Minimum Wage as February 1, 2006 Employers must pay most employees at least the minimum wage – no matter how they are paid (for example, hourly, salary, commission, flat rate, piece rate). • General ……………………………….. $7.75/hour • Students ………………………………. $7.25/hour • (under 18 years of age working 28 hours or less a week, • or during a school holiday) • Homeworkers ………………………… $8.53/hour • Liquor Services ………………………. $6.75/hour • Tips and gratuities aren’t considered to be wages.

16. Public Holidays • Most employees are entitled to take the following eight public holidays off with public holiday pay: • New Year’s Day • Good Friday • Victoria Day • Canada Day • Labour Day • Thanksgiving Day • Christmas Day • December 26th (Boxing Day)

17. Public Holidays Public holiday pay is the total of the regular wages earned and vacation pay payable to the employee in the four work weeks before the week in which the public holiday falls – divided by 20. There are special rules about substitute days off and pay for work performed on a public holiday where an employee is required to work or agrees to work on the public holiday. An employee who works in a hotel, motel, tourist resort, restaurant, tavern, hospital or continuous operation may be required by his or her employer to work on a public holiday if the holiday falls on a day that is ordinarily a working day for the employee and the employee isn’t on vacation.

18. Public Holidays Employees don’t have the right to a paid public holiday or a substitute day off if: • They fail to work all of their regularly scheduled shift before or after the public holiday without reasonable cause; or • They agreed or were required to work on the public holiday and failed to do so without reasonable cause. These employees are still entitled to be paid at least 1½ times their regular rate for each hour they did work on a public holiday.

19. Vacation and Vacation Pay Employees must receive two weeks‘ of vacation time for every “standard vacation entitlement year”. The vacation pay shall be not less than 4% of their wages earned in that 12 month period. Where the employer has established an “alternative vacation entitlement year”, the employee would earn a pro-rated amount of time for the “stub period”. The employer must schedule the vacation no later than 10 months after it was earned. The employer must also schedule the vacation in one- or two-week blocks – unless the employer and the employee agree, in writing, that it may be taken in shorter periods.

20. Vacation and Vacation Pay Vacation pay must be paid before the vacation commences or, if the employee is pay by direct deposit, or is not taking complete weeks, on or before the pay day for the period in which the vacation falls (unless agreed otherwise). Employers have the right to decide when an employee can take their vacation (subject to the 10-month limitation). The employee and employer may also agree in writing to pay/receive vacation pay with each pay.

21. Reporting for Vacation with Pay Employers are required to keep records of time/pay earned, taken and balance for each year/stub period. These records must be made no later than 7 days/1st pay day after the year/stub period whichever is later. Employees may request in writing a statement relating to the above records or a current year/stub period, and the employer is required to provide it within 7days/1st pay day. (This does not apply where an employee has agreed to vacation pay on each paycheque. However this must be reflected on pay slip/a separate statement. An employer is only required to produce this information once relating to an entitlement year or stub period.

22. Leaves of Absence • Pregnancy and Parental Leave • A pregnant employee can take up to 17 consecutive weeks of unpaid pregnancy leave – provided she was hired by her employer at least 13 weeks before her due date. • If a new parent has been employed by his or her employer for at least 13 weeks, he or she is entitled to unpaid parental leave of up to: • 35 consecutive weeks (if the employee also took pregnancy leave); or • 37 consecutive weeks (if the employee did not take pregnancy leave).

23. Leaves of absence Emergency Leave • If an employer regularly employs 50+ employees, employees are • entitled to take 10 unpaid days each calendar year • An employer may require an employee to provide • evidence reasonable in the circumstances and may • deem any part day as one’s days leave • The leave may be taken for: • personal illness, injury or medical emergency, or • the death, illness injury or urgent matter relating to • 1. Employee’s spouse or same-sex partner • 2. Parent, step-parent or foster parent • 3. Child, step-child or foster child • 4. Grandparent, step-grandparent, grandchild or step-grandchild • 5. Spouse or same-sex partner of a child of the employee • 6. Employee’s brother or sister • 7. Relative who is dependent for care or assistance

24. Leaves of absence • Family Medical Leave • An employee may take up to 8 weeks of unpaid, job-protected leave to provide care or support to an individual who has a serious medical condition with a significant risk of death occurring within a period of 26 weeks from the date of the issuance of a medical certificate • Individual may be: • employee’s spouse • parent, step-parent or foster parent of the employee • child, step-child, or foster child of employee or spouse • The employer may request a copy of a certificate from a qualified health practitioner

25. Leaves of absence Upon completion of any leave of absence (pregnancy, parental, emergency and family medical), the employee shall be reinstated to the job he/she most recently held, if it still exists, or to one of comparable nature, and shall be reinstated to the wage rate most recently earned or the rate the employee would be earning had the employee worked throughout the leave. The employee shall incur no interruption of benefit plan coverage(if applicable), and no loss in seniority.

26. Notice of Termination of Employment In most cases, if an employer ends the employment of an employee who has been continuously employed for three months or more, the employer must provide the employee with advance written notice of the termination or termination pay as follows: Length of EmploymentNotice of Termination Less than 3 months Not required 3 months to less than 1 year 1 week 1 year to less than 3 years 2 weeks 3 years to less than 4 years 3 weeks After three year’s employment – one week for each completed year of employment to a maximum of eight weeks. There are special rules for terminations involving 50 or more employees In a four week period.

27. Notice of Termination of Employment • Exemptions among others • Employee hired on a definite term or completion of a specific task • Employee on a temporary lay-off • Employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned • Employee employed on an elect-to-work basis • Employee refuses an offer of reasonable alternative employment

28. Temporary Lay-off A temporary lay-off is a lay-off of; a: not more than 13 weeks in 20 consecutive weeks, or b: under certain circumstances, not more than 35 weeks in 52 consecutive weeks Layoffs that exceed the times above are deemed to be terminations. A employer can place an employee on a temporary lay-off without providing a recall date.

29. Severance Pay • Employees who are severed may be entitled to severance pay under certain conditions. • The employee must have worked for the employer for at least five years, and • the employer must have an annual payroll of at least $2.5 million in Ontario, or • the employer must have severed 50 or more employees within a six-month period and as a result all or part of the employer's business ends permanently. • Severance pay amounts to one week of pay for each year of service up to a maximum of 26 weeks. Completed months of a partial year are also recognized.

30. Liability of Directors Directors of corporations are personally liable to pay wages and vacation pay. They are not liable for termination or severance pay. Directors are liable for wages earned and vacation pay accrued while they are a director. This liability is limited to six months of wages and 12 months of vacation pay.

31. Reprisal • Employees cannot be penalized in any way if they: • Ask their employers to comply with the ESA and the regulations; • Ask questions about their rights under the ESA; • File a complaint under the ESA; • Exercise or try to exercise a right under the ESA; • Give information to any employment standards officer; • Are or will become eligible to take; plan to takeor takepregnancy, parental or emergency leave; • Testify, participate or are going to participate in a proceeding; • Take part in a proceeding under the section 4 of the Retail Business Holidays Act; or, • If the employer has to pay a third party monies it owes to any employee because of a court order or garnishment.

32. Administration • Employers who violate the ESA can be ordered to: • Comply with the ESA; • Pay an employee the amount of wages owing up to a maximum of $10,000; • Pay an administrative cost; • Reinstate and/or compensate an employee; • Pay a penalty (Notice of contravention) • 1st offence - $250 • 2nd offence - $500 • 3rd offence - $1000

33. Penalties For Offences Certificate of Offence $295 + court costs and victim surcharge 65 Total $360 Examples of offences for which a ticket may be issued (not exhaustive list): • Failure to post • Failure to make records • Failure to pay overtime pay • Failure to give eating period • Failure to give 11 hours free from work in a day • Failure to produce records or provide assistance

34. Penalties For Offences Part I Summons Maximum $500 Examples of offences for which a summons may be issued: • Non-monetary or administrative offences (failure to post, failure to make and retain records, failure to attend a meeting) • Violations of “core” entitlements (minimum wage, vacation pay, etc.)

35. Penalties For Offences Maximum fines for individuals is $50,000 Maximum jail term of 12 months Maximum fines for corporations escalate as follows: $100,000 for 1st conviction; $250,000 for 2nd conviction; $500,000 for 3rd conviction An employer who fails to comply with a court-ordered reinstatement order could be subject to a daily penalty of $2,000 a day for an individual or imprisonment for a term up to six months or both; and $4,000 a day for a corporation

36. Resolving a Dispute An employee who files a complaint regarding unpaid wages with the Ministry of Labour isn’t entitled to recover wages that became due more than six months before the complaint was filed. The recovery period may be extended to 12 months where there was a repeated contravention and at least one of the contraventions occurred in the six-month period before the complaint was filed. If the employee is filing a complaint seeking compensation for something other than unpaid wages or reinstatement, the ministry may be able to provide a remedy if the complaint is filed within two years of the date the contravention occurred.

37. Applications for Review Employees and employers are entitled to ask the Ontario Labour Relations Board (OLRB) to review anOrder or Noticeof an Employment Standards Officer An Application for Review must be filed with the OLRB within 30 days of the service of the decision The OLRB may authorize a Labour Relations Officer to attempt to bring about a settlement of a review of an order to pay through mediation Labour relations officers are not authorized to settle notices of contravention

38. Need More Help or Information? Contact the Employment Standards Information Centre at (416) 326-7160 or 1 (800) 531-5551 or the Citizens Inquiry Bureau at 1-800-267-8097 to find the nearest ServiceOntario location • The ESA, 2000 and related publications can be found at: • Ministry of Labour website http://www.gov.on.ca/labour/ • Workplace Gateway http://www.serviceontario.ca/workplacegateway/english/index.htm • Publications Ontario, 880 Bay St., 5th flr, Toronto M7A 1N8 Telephone 416-326-5300 or in Ontario 1-800-668-9938 • Ontario Government E-Laws website • http://www.e- laws.gov.on.ca