As retailers and other seasonal employers gear up for the holiday rush, many hire additional temporary staff to ensure they are ready for crowds of shoppers and extended holiday hours.
In preparation for this time of year, we made a list (and checked it twice!) of issues that Ontario seasonal employers should keep in mind in relation to these employees:
Recruitment & hiring
- Avoid human rights concerns in interviews. When hiring employees to work during the holiday season, it may be tempting to ask questions which directly or indirectly result in the disclosure of information relating to the prohibited grounds of discrimination, such as a candidate’s family status or religion. While it is reasonable to confirm the candidate’s availability to work on certain dates, the person conducting the interview should use their judgment and ensure that they do not require the candidate to explain why they have (or lack) certain availability.
- Employment contract. Get it in writing! Whether the employment contract is for a fixed term or for an indefinite period, the contract should contain a termination clause limiting the employee’s entitlement to the minimum notice, benefits continuance, and severance required under employment standards legislation (or a greater entitlement, if that is your intention). If your company’s standard termination clause has not been recently reviewed, consider contacting your lawyer to confirm its enforceability.
- Agreement to work on Sundays & public holidays. To ensure that expectations are clear, employers should ensure that employees hired for the holiday season agree in writing to work on Sundays and on public holidays at the time of hiring. Ontario employment standards legislation provides that an employee of a retail business hired after September 4, 2001 does not have the right to refuse work on Sundays if they agreed in writing at the time of hiring to work on Sundays, unless they are refusing to work because of religious belief or observance. Employees who qualify for public holiday pay can agree in writing to work on a public holiday and to be paid public holiday pay and premium pay for all hours worked on the public holiday or to be paid regular wages for hours worked on the public holiday and receive a substitute holiday for which they are paid public holiday pay. Where an employee has agreed in writing to work on Sundays or on a public holiday, the employee can later decline to work on a Sunday or on the public holiday by giving the employer at least 48 hours’ notice before the start of the scheduled shift.
- Seasonal employees must receive training. New employees may be more likely to make mistakes or to cause or incur injuries because they are unfamiliar with the workplace and applicable procedures. Employers must provide all the training that is statutorily required for its workers to its seasonal or short-term employees. This training includes those requirements set out under the Occupational Health and Safety Act and the Accessibility for Ontarians with Disabilities Act. Employees are entitled to be paid for the time they spend in training.
- Minimum wage & overtime. As of November 1, 2019, the general minimum wage rate in Ontario is $14.00/hour and the student minimum wage rate is $13.15/hour. The student minimum wage rate only applies to students under the age of 18 who work 28 hours a week or less when school is in session or work during a school break. In Ontario, unless there is an overtime averaging agreement in place, an employee is entitled to 1.5 times their regular rate of pay for every hour worked in excess of 44 hours in a week.
- Vacation pay. Seasonal employees are entitled to the accrual of vacation entitlements under employment standards legislation, even if they will not have an opportunity to take vacation before their employment ends. If the employees do not receive their vacation pay on each pay cheque, accrued and unpaid vacation pay must be paid when they take vacation or following their termination from employment.
- Public holiday pay – the “last and first rule”. An employee who fails without reasonable cause to work all of their last regularly scheduled day of work before the public holiday or all of their first regularly scheduled day of work after the public holiday will not qualify for public holiday pay. This is commonly referred to as the “Last and First Rule”. An employee also will not qualify for public holiday pay if they fail without reasonable cause to work their entire scheduled shift on a public holiday if they had previously agreed to work that day.
- Hours of work. Preparing the employee work schedule for the holidays is no easy feat, particularly when the employer needs to account for extended or irregular holiday hours. Employers must ensure that they comply with employment standards legislation in setting the hours of work for their employees during the holiday season. In general, the maximum hours of work permitted under Ontario employment standards legislation is 8 hours a day (more if the regular work day is longer than 8 hours) and 48 hours per week. The legislation also sets out minimum requirements for rest and eating periods.
- Split shifts. Unless there is an agreement in writing with the employee, employers must give employees a minimum of 8 hours off work between shifts, unless the total time worked on those shifts is 13 hours or less. If this is going to cause concern for the company’s scheduling during the holidays, the employer should consider obtaining the employee’s agreement in writing at the time of hiring. Even where there is an agreement in writing, according to the rest rule in Ontario’s employment standards legislation, an employee must have 11 consecutive hours free from performing work each day.
Termination from employment
- Notice of termination in writing. Employers should ensure that seasonal employees are terminated in accordance with the clauses in their employment contracts. The employee must receive notice or confirmation of their termination in writing. As a matter of best practice, the written notice should be provided to the employee in person or by courier to ensure that there is no dispute the employee received it.
By Justine Lindner
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