By: Sean O’Donnell

These blog posts are meant to provide educational content and are not to be taken as legal advice.

 

The labour movement has come a long way in the last century, thanks largely in part to a very strong union movement. It is a well-known fact that unions are charged with protecting the interests and rights of the unionized worker, but did you know that most workers in Ontario, regardless of union affiliation, are protected under the Employment Standards Act, 2000 (the “ESA”).  This is provided that the worker does not fall within the federal jurisdiction (e.g. banking, telecommunications and interprovincial transportation), with other applicable exceptions.

Every worker covered under the ESA has the right to enforce its provisions without fear of reprisal. Unfortunately, that fear can be very real – especially when the consequences of unemployment may be worse than putting up with unfair working conditions.

While this knowledge itself can’t speak up for you, having it can give you the courage and the power to speak up for yourself. 

Let’s take a look at some of the key basic standards covered in the ESA and what they mean for the majority of Ontario employees.

Minimum Wage

The minimum wage is the lowest rate an employer can pay an employee. As of January 1st, 2018 until September 30th, 2020 the minimums are as follows:

• General minimum wage: $14 per hour
• Student minimum wage: $13.15 per hour
• Liquor servers minimum wage: $12.20 per hour
• Homeworkers minimum wage: $15.40 per hour

Hours of Work/Overtime Pay

There are both daily and weekly limits on the number of hours the employer can require employees to work: eight (8) hours in a day, or the number of hours in an established work day (for example nurses who work twelve hour shifts).  The typical weekly limit is forty-eight (48) hours.  However, these limits can be exceeded by written agreement between the employer and employee, and in the case of exceeding the weekly limit, the employer must obtain approval from the Director of Employment Standards.  

In addition, if an employee works more than thirteen hours in a day – either by working consecutively or by split shifts – they must have a minimum of eight hours off before their next shift. 

In any event, employers are generally required to pay non-managerial/non-supervisory employees overtime pay of 1.5 times their regular rate, for time in excess of forty-four (44) hours per week. 

Sick Leave

Most employees are entitled to up to three unpaid day of job-protected leave per calendar year, due to personal illness, injury or medical emergency, after two consecutive weeks of work. The employer may request a medical note, but can only ask for the following information:

• Duration or expected duration of the absence
• Date employee was seen by healthcare professional
• Whether the patient was examined in person by health care professional issuing the note

Vacation pay

Employees are entitled to at least 4% of their gross earnings for vacation pay in the first 5 years and 6% thereafter (excluding any vacation pay). This means that you either get paid a percentage on every pay, or you get paid vacation days.

Vacation time

Employees are entitled to two weeks of vacation time after twelve months of consecutive work in their first five years and three weeks thereafter. 

Notice of Termination/Pay in Lieu

For most employees who have continuously worked with an employer beyond three (3) months, they are entitled to notice of the termination of their employment, or pay instead of that notice, of one (1) week per year of service, to a maximum of eight (8) weeks.  

Severance Pay

Severance pay is issued when a long-standing employee loses their employment. An employee is entitled to severance pay, if their employment is severed and they:

• have worked for the employer for five or more years (including all the time spent by the employee in employment with the employer, whether continuous or not and whether active or not)
  and
• their employer:    
  • has a payroll in Ontario of at least $2.5 million (although recent court decisions provide that the employer’s payroll outside of Ontario is also to be included);
    or
  • severed the employment of 50 or more employees in a six-month period because all or part of the business permanently closed.

All of these basic standards and more are set out in the ESA, and the employer is required, by law, to have a copy made available to you within thirty (30) days of becoming an employee. In addition, there should be a full size poster highlighting your rights visible to you at the workplace.

Many employment contracts and the common law exceed the basic employment standards in the ESA.  Employees and employers should always consult with a lawyer to determine the rights and obligations applicable to their unique circumstances.   

If your rights are being violated, or you need advice on your obligations as an employer, don’t be afraid to speak up or contact the professionals at SJO Legal PC for help.