Employee Standard Act-Canada

                                                                         

1.       What is the Employment Standards Act? The Employment Standards Act is an Act of the Legislature of Ontariowhich regulates employment in the province, including wages, maximum work hours, and workplace health and safety. It differs from the Ontario Labour Relations Act, which regulates unionized labour in Ontario. a.    To whom does it apply?         It applies for most of the employees and employers. b.    What is the purpose of it? The ESA sets out the rights and responsibilities of both employees and employers in Ontario workplaces.

2.       What is the maximum number of hours that one can work in a week under normal circumstances? The maximum number of hours most employees can be required to work in a week is 48 hours. The weekly maximum can be exceeded only if there is a written agreement between the employee and employer and the employer has received the 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.

3.       When is a worker entitled to a food break? Most employees may not work longer than five hours in a row without getting a 30-minute eating period. If the employer and employee agree, the 30-minute eating period may be taken as two breaks within each five-consecutive-hour work period. Meal breaks are unpaid unless the employee's employment contract requires payment. Employers don't have to give employees "coffee" breaks or any other kind of break other than the eating period.

4.       What is the present minimum wage?     In Ontario, present minimum wage for an adult worker is $11.40 per hour.

5.       What is the minimum wage for a student? In Ontario, the minimum wages for a student is $10.70 per hour.

6.       How many paid holidays is the normal working person entitled? a)         Name them: Most employees in Ontario qualify for holiday pay unless they are absent from their last scheduled shift before the holiday or first scheduled shift after the holiday. An employee scheduled to work a holiday who is absent will not be paid for the holiday. There are no restrictions on how long an employee has to work for an employer to be eligible for holiday pay. Employees in Ontario who work a public holiday are entitled to receive a pay rate of time-and-a-half of their regular wage or a substitute holiday with holiday pay. The statutory holiday where the holiday pay is paid includes: 1.       New Year's Day 2.       Family Day 3.       Good Friday 4.       Victoria Day 5.       Canada Day 6.       Labour Day 7.       Thanksgiving Day 8.       Christmas Day 9.       Boxing Day (December 26)

7.       When is overtime paid? For most employees, whether they work full-time, part-time, are students, temporary help agency assignment employees, or casual workers, overtime begins after they have worked 44 hours in a work week. Their hours after 44 must be paid at the overtime pay rate. At what rate? Overtime pay is 1½ times the employee's regular rate of pay.

8.       Is everyone entitled to vacation pay? Under the Employment Standards Act ( ESA ), most employees are entitled to receive two weeks of vacation for each 12 months of employment, whether or not active. How much? Most employees are also entitled to vacation pay equal to at least four per cent of the wages earned during that year.

9.       What benefits are pregnant women entitled to? Pregnant employees have the right to take pregnancy leave of up to 17 weeks, or longer in certain circumstances, of unpaid time off work. Either the mother or father can take 35 weeks of parental leave after the baby is born or adopted. The parents can share the leave however they choose. If eligible for the program, the benefits equal 55% of the parent's average weekly insurable wage, up to a maximum of $485 per week. Employers do not have to pay wages to someone who is on pregnancy leave. New parents have the right to take parental leave--unpaid time off work when a baby or child is born or first comes into their care. Birth mothers who took pregnancy leaveare entitled to up to 35 weeks' leave.

10.     When must an employer give notice to an employee who is being terminated? Period of Employment Notice Required Less than 1 year 1 week 1 year but less than 3 years 2 weeks 3 years but less than 4 years 3 weeks 4 years but less than 5 years 4 weeks 5 years but less than 6 years 5 weeks 6 years but less than 7 years 6 weeks 7 years but less than 8 years 7 weeks 8 years or more 8 weeks

Case Studies

The Employment Standards Act

Refer to the pamphlet A Guide to the Employment Standards Act as your source of information in responding to the questions under each heading of the Employment Standards Act.

General Coverage and Application - Who=s Covered?

1.  Carol worked as a babysitter on Saturday for 12 hours.  Was she entitled to a minimum wage?  Why? Yes, she is entitled to a minimum wage because employer should follow the Ontario’s wage standard.

2.  Terry has a job on a dairy farm and feels he should have the July 1st weekend off.  Will he get this holiday?  Why? He may or may not get the holiday depending upon the company’s policy about holiday.

3.  Harry works part time stocking shelves in a pharmacy and earns $6.00 an hour.  Is he entitled to minimum wage?  Why? Yes he is entitled to get minimum wage rate because the wage rate applies for both full time and part time jobs.

Hours of Work

4.  Sandra is 18 years of age and works in a factory.  Her employer has a permit which allows all employees to work 10 hours a day.  One day, after working 8 hours, Sandra is told she must work more hours because too many people have phoned in sick.  Sandra is tired and does not want to work.  Must she work under the law?  Explain. Generally, an employee can work more than eight hours in a day (or the number of hours in his or her regular work day if that is longer) only if he or she has agreed in writing and was provided with the document entitled “Information for Employees About Hours of Work and Overtime Pay,” published by the Director of Employment Standards, before the agreement was made. There are exceptional circumstances where an employee may be required to work more than the daily or weekly limits on hours of work, or to work during a required rest period. In such cases, the limits on hours of work may be exceeded or the rest period may be reduced, but only to the extent that it is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations.

Case Studies

The Employment Standards Act (continued)

5.  Carrie has just worked 4 hours and wants a coffee break.  The store is very busy.  Can she legally take one anyway?  Explain. She is legally not entitled to get coffee break. Employers don't have to give employees "coffee" breaks or any other kind of break other than the eating period.

Minimum Wage

6.  Bruce has recently started working at a home construction site. His boss tells him he will earn $6.25 an hour until he knows what he is doing.  Is this legal?  Explain. No. He should get minimum wage rate during training period also.

7.  Mr. and Mrs. Smith are live-in superintendents in an apartment building and get a credit of $500 for their rent each month as payment.  When they sat down and worked out the hours they spend in that capacity they figured they earn about $5.00 per hour.  Can they complain legally?  Explain. They cannot complain legally as they belong to “ Industries and Jobs with Exemptions or Special Rules” under Employment standard Act. These employees are not entitled to the minimum wage according to Act: O. Reg. 285/01, s. 7(d).

Public Holidays

8.  Theresa is a student and works at the IGA. Her schedule is usually for a Friday night and one day, either a Saturday or Sunday.  Does she qualify for a paid public holiday?  Why or why not? She does not qualify for a paid public holiday as Saturday and Sunday are not considered as paid holiday in Ontario.

Case Studies

The Employment Standards Act (continued)

9.  Allen has worked full time for 7 weeks in a local factory.  Will he get Good Friday off with pay?  Explain. Most employees in Ontario qualify for holiday pay unless they are absent from their last scheduled shift before the holiday or first scheduled shift after the holiday. An employee scheduled to work a holiday who is absent will not be paid for the holiday. There are no restrictions on how long an employee has to work for an employer to be eligible for holiday pay. So, he will get good Friday off with pay if he was present in last scheduled shift before the holiday or first scheduled shift after the holiday.

10.  Sam had agreed to work on Good Friday, but his friends talked him into doing some spring skiing.  Sam has worked full time for this company for two years.  Will he still get a paid holiday?  Explain. An employee scheduled to work a holiday who is absent will not be paid for the holiday. So, he will not get paid holiday.

Overtime Pay

11.  Colleen works a 40 hour week in an office and earns $300 per week.  One week she worked 46 hours.  What will her earnings be for the week if she worked 46 hours?  Include your calculations below. Per hour pay= 300/40=7.5 per hour Overtime begins after he has worked 44 hours in a work week. His hours after 44 must be paid at the overtime pay rate of 1.5 times. So, overtime pay of 2 hour ( 46-44) is 2*1.5*7.5= $ 22.5 So. Total pay is 300+ 22.5+ 4*7.5 = $ 352.5

12.  Mr. Elken manages the local supermarket and works 50 hours per week.  He receives $400 a week.  How much overtime pay should Mr. Elken receive?  Explain. Managers and supervisors are not covered by overtime rules. However, it is not enough to simply call an employee a ‘manager’ or ’supervisor’. For the employee to be exempt from the overtime provisions found in the Employment Standards Act (ESA), he or she must do work that is supervisory or managerial in nature and only do non-managerial or non-supervisory work on an irregular or exceptional basis. So, Mr. Elken will not get any overtime pay.

Case Studies

The Employment Standards Act (continued)

Vacation Pay

13.  Melissa has worked full time for 15 months and demands that she be given a 2- week vacation with pay immediately.  Can Melissa make such a demand?  Explain. Employees are entitled to two weeks of vacation time after each 12-month vacation entitlement year. Ordinarily, a vacation entitlement year is a recurring 12-month period beginning on the date of hire. Where the employer has established an alternative vacation entitlement year that begins on a date other than the date of hire, the employee is also entitled to a pro-rated amount of vacation time for the period (called a "stub period") that precedes the alternative vacation entitlement year. Vacation pay must be at least four per cent of the "gross" wages (excluding any vacation pay) earned in the 12-month vacation entitlement year or stub period (where that applies). In most cases, the vacation pay earned during a completed vacation entitlement year or stub period must be paid to an employee in a lump sum sometime before he or she takes the vacation time earned. There are four exceptions: 1.    When the vacation time is being taken in periods of less than one week. ·         In this case, the employee must be paid vacation pay on or before the pay day for the period in which the vacation falls. 2.    When the employee has agreed in writing that his or her vacation pay will be paid on each pay cheque as it accrues (accumulates). ·         In this case, the employee's wage statement must show clearly the amount of the vacation pay being paid. This amount must also be shown separately from any other amounts paid. 3.    If the employee agrees in writing, the employer can pay the vacation pay at any time agreed to by the employee. 4.    If the employer pays the employee his or her wages by direct deposit into an account at a financial institution. So, she can demand such vacation pay.

14.  Hal quit his job at the beer store in the middle of the month and wants his vacation pay.  His employer says he will get it at the end of the month when all the other cheques are distributed. Can Hal demand that he get it sooner?  Explain. When employment ends the unpaid vacation pay must be paid either within seven days of the employment ending or on what would have been the employee's next pay day, whichever is later. So, he cannot demand the vacation pay earlier as it will be paid in month end along with his next pay cheque.

15.  Harry made $1000 a month in a sports store where he worked for 6 months.  How much will his vacation pay be? Employees must receive a minimum of four per cent of the gross "wages" (excluding vacation pay) they earned in the 12 month vacation entitlement year or stub period for which the vacation is being given. If an employee's contract or collective agreement provides a better vacation benefit than the minimum required, the employee may be entitled to a higher percentage of his or her gross earnings for vacation pay.  So vacation pay will be 4%* 1000 *6 =$240

Equal Pay for Equal Work

16.  Sam and Harry do the same job, but Sam makes more money than Harry.  Could Harry complain under this Act?  Explain. Pay equality, or equal pay for equal work, refers to the requirement that every individual of any gender be paid the same if performing the same job in the same organization.Even if both person are doing substantially the same work, they can be paid different rates of pay if the difference is due to: A seniority system.  A merit system.  A system that measures earnings by quantity or quality of production.  iv.            Any difference that is not based on the sex of the employee.

Case Studies

The Employment Standards Act (continued)

17.  Terry complained to the Director of the Employment Standards Branch because he was not getting equal pay for the same work as a woman in the same company.  He was afraid that his employer would find out who had complained and fire him.  Give two (2) reasons why he does not need to worry. Ontario has legislation called the Pay Equity Act to ensure that women and men receive equal pay for performing jobs that may be very different but are of equal value. The Employment Standards Act, 2000 (ESA), on the other hand, has provisions that ensure women and men receive equal pay for performing substantially the same job. That is, they are entitled to receive equal pay for "equal work", meaning work that is substantially the same, requiring the same skill, effort and responsibility and performed under similar working conditions in the same establishment.

18.  Nancy is doing the same job as Joe but receives less pay.  Her boss tells her it is because Joe has a diploma that she does not.  The diploma, however, does not qualify Joe to do a better job.  Can Nancy complain?  Explain. Even if both person are doing substantially the same work, they can be paid different rates of pay if the difference is due to: i. A seniority system. ii.            A merit system. iii.A system that measures earnings by quantity or quality of production. iv. Any difference that is not based on the sex of the employee. In this case as diploma does not qualify Joe to do a better job, so Nancy can complain.

Pregnancy Leave

19.  Trudy was working as a secretary when she left her job to have a baby.  When she returned, her employer told her that he had replaced her but she could be a filing clerk and work for $2.00 less an hour.  Is the employer within his rights to do this?  Explain. She is protected under “The Right to Reinstatement “. In most cases, an employee who takes a pregnancy or parental leave is entitled to: ·         the same job the employee had before the leave began; or ·         a comparable job, if the employee's old job no longer exists. In either case, the employee must be paid at least as much as he or she was earning before the leave. Also, if the wages for the job went up while the employee was on leave, or would have gone up if he or she hadn't been on leave, the employer must pay the higher wage when the employee returns from leave.If an employer has dismissed an employee for legitimate reasons that are totally unrelated to the fact that the employee took a leave, the employer does not have to reinstate the employee.

Case Studies

The Employment Standards Act (continued)

Termination of Employment

20.  The boss became very angry with Marietta when she disobeyed a request to do what he had requested, and fired her on the spot.  Can he do this without notice?  She has been employed for over a year.  Explain. In most cases, when an employer ends the employment of an employee who has been continuously employed for three months, the employer must provide the employee with either written notice of termination, termination pay or a combination (as long as the notice and the number of weeks of termination pay together equal the length of notice the employee is entitled to receive). However, certain employees are not entitled to notice of termination or termination pay. Examples include: employees who are guilty of wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and has not been condoned by the employer. So, he can do this without prior notice.

21.  Harry was temporarily laid off for two months after working for two years for a company.  Will he get notice of termination?  Explain. An employee is on temporary layoff when an employer cuts back or stops the employee’s work without ending his or her employment (e.g., laying someone off at times when there is not enough work to do).  Employers are not required under the ESA to provide employees with a written notice of a temporary layoff, nor do they have to provide a reason for the lay-off. (They may, however, be required to do these things under a collective agreement or an employment contract.)

22.  What is the website address for the Employment Standards Act? https://www.labour.gov.on.ca/english/es/