Employment Standards Act (ESA)

Background on the Employment Standards Act (ESA)

Ontario’s Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), as amended, establishes minimum rights and obligations for employees and employers in Ontario.  The ESA covers a broad spectrum of employment matters, including payment of wages, work hours, vacations, leaves of absence, termination and severance of employment, complaints, and enforcement of the terms and conditions under ESA.

Application of the Employment Standards Act (ESA)

The ESA applies to an employee and his or her employer if the employee’s work is performed in Ontario or any work performed outside of Ontario is a continuation of work performed in Ontario.  However, the ESA does not apply to the following types of workers and organizations:

Businesses that operate under federal employment laws.  For example, post offices, banks, airlines, the federal civil service, and railways, and media outlets (radio and television stations);

People working under an apprenticeship program or similar type program approved by a college or university.  Similarly, high school students working under a work experience program;

Employees of the Crown (excluded from some laws under the ESA), police officers, judges, politicians, religious leaders, and elected union officers;

People who undertake community participation under the Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A, as amended; and

Inmates participating in work rehabilitation programs and young offenders performing community service.

Posting of Employment Standards Act (ESA) Rights

Employers must post and provide employees with a “poster”, prepared by the Ministry of Labour, which outlines rights and obligations under the ESA (Sections 2(1), 2(3), and 2(5)).  Employees are entitled to receive a copy of the most recent ESA poster from their employer within thirty (30) days of becoming an employee (Section 2(7)).

Fundamental Employment Standards Act Rights

The Ministry of Labour summarizes the fundamental rights and obligations under the ESA to include, but not limited to, the following:

Employees must receive regular wages and a wage statement (Sections 11 and 12);

An employer cannot require an employee to work more than eight (8) hours per day (or more than a regular work schedule) and no more than forty-eight (48) hours per week (Section 17);

Most employees must be given at least eleven (11) consecutive hours off work per day and twenty-four (24) hours off per work week (Section 18);

An employee may choose to work longer than a regular work schedule if that choice is documented and the respective employer meets certain conditions under the ESA (Section 17(2));

Employees cannot work more than five (5) hours without a thirty (30)-minute period within which to eat (Section 20(1));

Overtime pay is typically due after working forty-four (44) hours in a week.  The overtime rate must be at least one-and-a-half times (1.5x – also known as “time-and-a-half”) an employees regular rate of pay (Section 22);

A minimum wage must be paid to most employees.  The current general minimum wage is $11.40 per hour (as of October 1, 2016) (Section 23);

Mandatory vacation time is two (2) weeks after twelve (12) months (Section 33).  Vacation pay must be at least 4% of the total wages earned during the twelve-month period (Section 35.2);

There are currently nine (9) public holidays which employees are entitled to take off from work and be paid public holiday pay (Sections 24 – 32) :
New Year’s Day
Family Day
Good Friday
Victoria Day
Canada Day
Labour Day
Thanksgiving Day
Christmas Day
Boxing Day (December 26)

Job-protected unpaid leaves of absence include:
Pregnancy leave (Section 46)
Parental leave (Section 48)
Family medical leave (Section 49)
Organ donor leave (Section 49.2)
Family caregiver leave (Section 49.3)
Critically ill child care leave (Section 49.4)
Crime-related child death or disappearance leave (Section 49.5)
Personal emergency leave (Section 50)
Reservist leave (Section 50.2)

Written termination notice and/or pay instead of notice are mandatory if you are employed for at least three (3) months (Section 54).  An employee may receive notice while working (“working notice”), pay instead of working notice, or a combination of the two.  The minimum notice period typically ranges from one (1) week for employees who are employed for more than three months, but less than one year, to eight (8) weeks for employees who are employed for eight years or more (Section 57).

Remember, you are legally entitled and justified to ask your employer about the rights and obligations under the ESA and cannot be punished or terminated for doing so.  You are also legally entitled to exercise your rights under the ESA without fear of reprisal from your employer (Section 74).

Employment and Labour Laws are not always straightforward, but whether you are an employee or an employer, understanding your rights and duties will only stand to benefit you. Reach out to an employment lawyer or labour lawyer today if you have any questions and be sure to get what you deserve and safeguard yourself for the future. The lawyers at Vey Willetts LLP have a proven track record and are happy to assist.  

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