What you should know about the Ontario Employment Standards Act
Most employers in Ontario are aware that the Employment Standards Act imposes standards on employers with respect to the treatment of employees. However, many are not aware that they are required to display a poster issued by the Ministry of Labour titled, “What You Should Know about the Employment Standards Act.” This poster, which can be downloaded from the ministry’s website, advises employees of their rights with respect to employment standards of hours of work, wages, public holidays and more. (The current poster is version 4.0.) Specifically:
Hours of work
The maximum number of hours which an employee can legally work in a day is eight. There is also a weekly limit of 48 hours. Both of these maximums can be exceeded where the employee has signed a written agreement to do so. Even if the employee signs such an agreement, the employee cannot work more than 60 hours in a week.
An employee cannot work more than five hours in a row without a thirty-minute break from work. There is no requirement for any other breaks during the workday.
The Act requires employers to pay time and a half for all hours of overtime either in excess of the amount agreed upon per week, or, in the absence of an agreement, in excess of 44 hours a week. It should be noted that, absent a policy or contract, employees are only entitled to overtime pay after they have worked 44 hours in a week, no matter whether they have worked more than eight hours in a given day.
For most industries, the minimum wage is set by the province. The current general minimum wage in Ontario is $10.25 an hour. Students are entitled to $9.60 an hour. Employees in bars and restaurants are entitled to $8.90 per hour.
Vacation time and pay
Employees are entitled to two weeks of vacation pay after twelve months of consecutive employment with the employer. The amount paid for vacation time must be at least four percent of the employee’s gross wages earned in the twelve-month period preceding the vacation. Of course, employers are free to set greater vacation entitlements.
The Act prescribes nine public holidays to which all employees are entitled, including Christmas Day, New Year’s Day and Canada Day. If an employee agrees in writing to work of any of the prescribed holiday days, that employee is entitled to premium pay. Alternatively, the employee can work the statutory holiday at the regular rate and receive a further holiday day with pay.
Leaves of absence
The Employment Standards Act provides for a number of different leaves, including pregnancy and parental leave, personal emergency leave and family medical leave. The entitlement to these leaves must be described in the notice.
Termination notice and pay
The Act prescribes that an employee is entitled to termination pay of a number of weeks based on the length of employment, to a maximum of eight weeks.
Of course, the Ministry of Labour’s poster doesn’t address everything employees should know about employment standards. Other important obligations/entitlements include:
The employer is required to maintain records with respect to each employee containing material information, and must retain these records for a period of three years following the cessation of employment. These records include the hours worked by the employee, and the amounts paid.
Employees who complain with respect to the employer’s compliance with the Employment Standards Act or other legislation are protected from reprisal by the employer. The Act provides that employers are prohibited from penalizing their employees in any way for, among other things, filing a complaint under the Act, providing information to an employment standards officer, or refusing to take a lie detector test.
The poster provides contact information for the people at the ministry. Employers must also inform employees of their entitlement to contact the ministry to enforce the rules under the Act, and the possible result of such enforcement.
It should also be noted that if the majority of the employees in a given workplace have a first language that is not English, there may be a requirement to post the Employment Standards Act notice in the majority language. Further particulars on multilingual notices can be obtained from the Ministry of Labour.
Employers should be aware that failing to meet the posting requirements under the Act can result in prosecution by the Ministry of Labour, resulting in a fine and/or imprisonment. Consolation can be taken from the fact that imprisonment is rarely ordered.
Garfinkle Biderman LLP