Fairness in the workplace is the right of all Ontarians. If you run a business or manage people, you need to know about the Employment Standards Act, 2000 (ESA). If you are employed in Ontario, you are probably protected by the ESA.
Employment Standards Act, 2000 (ESA)
The Employment Standards Act, 2000 sets out the rights and responsibilities of employees and employers and minimum standards for conditions of employment in most workplaces in Ontario. The ESA establishes basic employer obligations and employee rights with respect to rates of pay, hours of work and overtime, vacations, public holidays, various forms of leave and more. The ESA contains some of the rules affecting work in Ontario. The ESA is enforced by officers who work for the Employment Standards Program, which is part of the Ministry of Labour.
The Ministry of Labour of Ontario
The Ministry of Labour of Ontario promotes a stable and constructive labour relations climate and fosters productive workplace relationships in Ontario. The Ministry’s labour relations activities focus on settling workplace disputes under various employment-related statutes, assisting in the settlement of collective agreements and producing collective bargaining information. Through its Employment Standards Program, the Ministry of Labour:
- enforces the ESA and its regulations
- provides information and education to employers and employees, making it easier for people to understand and comply voluntarily
- investigates possible violations
- resolves complaints
EMPLOYMENT STANDARDS ACT (ESA)
The ESA Covers
The ESA covers a wide range of employment standards including: minimum requirements for workplaces; provisions to assist employees with family responsibilities; increased flexibility in work arrangements; and mechanisms for compliance and enforcement. No employee can agree to waive or give up their rights under the ESA (for example, the right to receive overtime pay or public holiday pay). Any such agreement is null and void. Subjects covered under the ESA include:
- Posting Requirements
- Hours of Work
- Eating Periods
- Rest Periods
- Wages and Overtime
- Minimum Wage
- Pregnancy and Parental Leave
- Personal Emergency Leave
- Family Medical Leave
- Public Holidays
- Vacation
- Termination and Severance of Employment
- Temporary Layoffs
- Equal Pay for Equal Work
- Temporary Help Agencies
- Enforcement and Compliance
The ESA Does Not Cover
The ESA does not cover certain individuals and persons or organizations for whom they may perform work, including:
- Employees and employers in sectors that fall under federal jurisdiction, such as airlines, banks, the federal civil service, post offices, radio and television stations and inter-provincial railways
- Individuals performing work under a program approved by a college of applied arts and technology or university
- A secondary school student who performs work under a work experience program authorized by the school board that operates the school in which the student is enrolled
- People who do community participation under the Ontario Works Act, 1997
- Police officers (except for the Lie Detectors provisions of the ESA, which do apply)
- Inmates taking part in work or rehabilitation programs, or young offenders who perform work as part of a sentence or order of a court
- People who hold political, judicial, religious or elected trade union offices.
- Employees of the Crown are excluded from some (but not all) provisions of the ESA.
KEY EMPLOYMENT STANDARDS
Some key employment standards are listed below.
An Employer must post the poster “What you Need to Know”: This poster produced by Ontario Ministry of Labour. It lets people know what the key minimum standards are and directs them to the Ministry of Labour website and in the ESA itself for more information.
Hours of Work: The ESA limits hours that employees can work in a day and in a week. It provides ways in which employer and employees can agree to work more hours to meet the business needs. It also sets out mandatory rest periods and rules around overtime.
Minimum Wage: Effective March 31, 2010, the lowest hourly rates an employer can pay an employee are: general – $10.25 per hour; students – $9.60 per hour.
Vacation Time and Pay: Most employees earn at least 2 weeks of vacation time after every 12 months of employment. Employees are entitled to be paid at least 4% of their total wages earned in that 12-month period as vacation pay.
Public Holidays: Ontario has nine public holidays every year. Most employees are allowed to take these public holidays off work with public holiday pay.
Leaves of Absence: There are four main types of leaves of absence that some employees are eligible for – pregnancy and parental leave, emergency leave, and family medical leave. These leaves are job-protected. That means employees cannot be terminated for asking for or taking these leaves of absence.
Termination Notice and Pay: An employer must give an employee who has been employed for 3 months or more advance written notice, termination pay instead of notice, or a combination of both, if his or her job is terminated. The amount of notice or pay depends on how long the employee has been working for the employer and the number of employees being terminated in a 4-week period.
Daily Limit of Work: The maximum number of hours most employees can be required to work in a day is 8 hours or the number of hours in an established regular workday, if it is longer than eight hours. The only way the daily maximum can be exceeded is by written agreement.
Weekly Limit of Work: The maximum number of hours most employees can be required to work in a week is 48 hours. The weekly maximum can be exceeded by written agreement and approval of the Director of Employment Standards. However, the ESA provides a limited exception where an application for approval is pending. If, after 30 days after serving an application for excess hours on the Director, the employer has not received an approval or notice of refusal, the employer may require employees to start working more than 48 hours as long as certain conditions are met including, the employee does not work more than 60 hours in a work week or the number of hours the employee agreed to in writing, whichever is less.
Exceeding Limits on Hours of Work: In Ontario, a written agreement is required for exceeding limits on hours of work. An employer and an employee can agree in writing that the employee will work more than 8 hours a day or 48 hours a week. These agreements are valid only if, prior to making the agreement, the employer gives the employee the Information Sheet for Employees about Hours of Work and Overtime Pay prepared by the Director of Employment Standards that describes the hours of work and overtime rules in the ESA. In order to be valid, the agreement must also include a statement in which the employee acknowledges receipt of the Information Sheet. In most cases, an employee can cancel an agreement to work more hours by giving the employer two weeks’ written notice and an employer can cancel the agreement by providing reasonable notice. Once the agreement is revoked an employee is not permitted to work excess daily or weekly hours even if the employer has an approval from the Director of Employment Standards for excess weekly hours. An agreement between an employee and an employer to work additional daily or weekly hours, or an approval from the Director of Employment Standards for excess weekly hours, does not relieve an employer from the requirement to pay overtime.
Hours Free from Work: Employees are entitled to a certain number of hours free from having to work.
- Daily: In most cases, an employee must receive at least 11 consecutive hours off work each day. Generally, an employee and an employer cannot agree to less than 11 consecutive hours off work each day. This rule does not apply to employees who are on call and called in to work during a period when they would not normally be working. This requirement cannot be altered by a written agreement between the employer and employee.
- Between Shifts: Employees must receive at least 8 hours off work between shifts. This does not apply if the total time worked on both shifts is not more than 13 hours.
- Weekly or Bi-Weekly: Employees must receive at least 24 consecutive hours off work in each work week; or 48 consecutive hours off work in every period of two consecutive work weeks.
Eating Periods: Employers are required to provide eating periods to employees, but they are not required to provide other types of breaks. An employee must not work for more than 5 hours in a row without getting a 30-minute eating period (meal break) free from work. However, if the employer and employee agree, the eating period can be split into two eating periods within every 5 consecutive hours. Together these must total at least 30 minutes. This agreement can be oral or in writing. Meal breaks are unpaid unless the employee’s employment contract requires payment. Even if the employer pays for meal breaks, the employee must be free from work in order for the time to be considered a meal break. Meal breaks, whether paid or unpaid, are not considered hours of work, and are not counted toward overtime.
Coffee Breaks and Breaks Other Than Eating Periods: Employers do not have to give employees “coffee” breaks or any other kind of break. Employees who are required to remain at the workplace during a coffee break or breaks other than eating periods must be paid at least the minimum wage for that time. If an employee is free to leave the workplace, the employer does not have to pay for the time.
Night Shifts: The ESA does not put restrictions on the timing of an employee’s shift other than the requirements for daily rest and rest between shifts. In addition the ESA does not require an employer to provide transportation to or from work if an employee works late, although individual contracts of employment or a collective agreement may require that transportation be provided.
INSPECTIONS
Even if there have been no complaints filed by an employee, Employment Standards officers visit businesses across Ontario ‘proactively’ for compliance with the ESA. Officers usually provide advance notice of an intended visit. They review the employer’s records and speak to the employees. If there are issues of non-compliance they discuss these with the employer may provide an opportunity to correct them. The Officers may also issue orders to pay, tickets or lay charges; courts may impose fines. In most cases, a review of the following 10 standards takes place, which apply to most, but not all, workplaces in Ontario.
- ESA poster
- Wage statements
- Deductions from wages
- Record keeping
- Hours of work
- Eating periods
- Overtime pay
- Minimum wage
- Public holidays
- Vacation with pay
COMPLAINTS
Employees who feel their rights have been violated under the ESA may file a claim electronically, by fax or by mail. In 2009, more than 20,000 workers did just that. In 2008 almost 500 prosecutions were brought against employers for violating the ESA. Tickets for hundreds of dollars were issued to hundreds of businesses last year. More serious violations have involved tens and, in some cases, hundreds of thousands of dollars in court orders. Directors of corporations can be held personally liable for their company’s violations and even jailed. In the long run, these penalties cost businesses much more money than compliance. Don’t be one of those penalized businesses. Contact CP Paralegal Solutions and ask questions.
EMPLOYMENT STANDARDS CLAIMS
Effective January 19, 2011, a new process for filing Employment Standards claims has started. Now, a new version of the Claim Form is in use. The previous versions of the Claim Forms are no longer accepted.
Employees can get a copy of the Employment Standards Claim Form:
- on the Ministry of Labour’s website (www.labour.gov.on.ca)
- by mail through ServiceOntario Publications; or
- in person at a ServiceOntario Centre.
When an Employee Cannot File a Claim
An employee who is covered by the ESA cannot file a claim with the Ministry of Labour if:
- an employee is represented by a trade union: these employees – if they are covered by a collective agreement and whether or not they are actually members of the union – must use the grievance procedure contained in the collective agreement between the employer and the trade union.
- an employee has already filed a claim in a court of law
There are 4 steps that must be followed in order to file a claim.
Step 1: Contact your employer
Employees must try to contact their employer or former employer about the employment standards rights they believe have been violated and the amount of money they are owed. It is possible to send to the employer the template letter and Request for Payment form. The employee has to wait a few days to give the employer a chance to get back to them (e.g. 7 to 10 days). However, some employees may have good reasons for not contacting their employer such as:
- The employee already tried to contact his or her employer
- The money owed to the employee became due five months ago or more (there are time limits for recovery)
- The workplace has closed down
- The employee is afraid to do so
- The employer has gone bankrupt or in receivership
- The issue does not involve money
- The employee is or was working as a live-in caregiver
- The employee has difficulty communicating in the language spoken by his or her employer
- The employee is a young worker
- The employee has a disability that prevents or makes it difficult to contact his or her employer
- The reason is related to a ground under the Ontario Human Rights Code
Step 2: Collect important documents
Employees are encouraged to collect important documents about their work histories before completing the claim form. Having these documents close at hand helps claimants fill out the Claim Form. However, employees may not have access to all the documents they need to fill out the Claim Form. In such a case, do the best you can to fill out the Claim Form with as much detail as possible.
Step 3: Fill out the Claim Form
Employees must fill out the required information on the Claim Form. It may take an hour or more to complete it. In completing the Claim Form, the employee must give details about:
- contact information for the claimant
- contact information for the employer
- which minimum standards were violated
- when it happened (dates and times)
- what is being claimed (including dollar amounts, if applicable)
- whether the employer is still operating
- whether the employer conducts business at other establishments or operates using any other name
Once the Ministry of Labour has all the information they need to investigate your claim. If certain information is missing the Ministry of Labour will try to contact you.
Step 4: The Claim Form Submission
It is recommended that an employee file his or her claim submission online. They will receive a claim submission number immediately. You may also file your claim submission:
- By fax at 1-888-252-4684.
- In person at a ServiceOntario Centre (1-800-267-8097).
- By mail to:
If an employee files a claim submission by fax, in person, or by mail, they will receive a letter in the mail with the claim number once all of the required information has been verified. If the claim submission is missing required information, the employee will receive a letter in the mail with the claim submission number and a request to provide the information. A claim submission number is assigned as soon as the ministry receives and registers your Claim Form. You will be provided with a claim number and your claim will be assigned for investigation once the ministry has verified that all required information has been completed.
A claim should only be filed once. For example, if an employee filed his or her claim online, the employee should not send another copy of the Claim Form to the Ministry of Labour.
INVESTIGATION, ENFORCEMENT AND APPEALS
Once a claim submission has been filed, it is reviewed to ensure that all the required information has been provided. If the Claim Form includes all required information, the claim is assigned to an employment standards officer for investigation. If the claim submission is missing required information, the employee will be contacted by the ministry. The claim submission will not be assigned for investigation unless the required information is provided within the stated period of time. During the investigation of a claim, the employee will be asked to provide some or all of the following:
- Copies of pay stubs or paycheques
- Copies of T4 slips
- A copy of his or her written notice of termination (if the employee’s employment was terminated and/or severed by the employer and notice was given)
- A copy of the employee’s Record of Employment, if received
- A copy of the contract of employment, if there is one
- Copies of any warning letters or notices received
- A record of the hours worked if available (e.g., a calendar record, time sheets, attendance records, diary or notes)
Maximum Amount of Money an Employer Can Be Ordered to Pay
With some exceptions, $10,000 is the maximum amount the Ministry of Labour can order an employer to pay an employee. However, this limit does not apply to claims under those parts of the ESA in which reinstatement and/or compensation can be ordered (for example, parts dealing with leaves of absence, the right of an employee not to be penalized for exercising his or her rights under the ESA, such as a retail employee’s right to refuse to work a public holiday).
Important Time Limits
Six months/twelve months limit for recovering wages: There is six months/twelve months limit for recovering wages. Unpaid vacation pay may be recovered if the claim is filed within 12 months of the date the vacation pay came due (rather than 6 months). If an employer has violated the same section of the ESA more than once, with respect to an employee, and the violations occurred in the six-month period before the claim was filed, the employee will be entitled to recover the wages due for all violations of the same provision that occurred in the 12-month period before the claim was filed.
Two-year time limit for filing a claim: The above-mentioned 6 month/12 months limitations on recovery apply only to an employee’s ability to seek recovery of unpaid wages, including vacation pay. In the case of other violations, an employment standards officer is able to issue certain orders for up to two years after a violation has occurred. Under the ESA, generally all employees must file a claim within 2 years of the contravention in order for the claim to be investigated. This two-year time limit applies where:
- The employee believes an employer has violated a non-monetary section of the ESA for example, the employer did not give proper meal breaks, failed to provide wage statements, or if the violation relates to leaves of absence, lie detectors and retail business employees’ rights.
- The employee is seeking compensation and/or reinstatement in cases where for example, the employer has penalized or threatened to penalize an employee for exercising rights under the ESA.
