Ottawa Employment Standards Lawyers
As Ottawa employment law lawyers, we handle claims related to breaches of the Employment Standards Act (“ESA”) by employers in Ontario. The ESA is provincial legislation that establishes minimum standards that apply to employees performing work in Ontario. It covers topics such as minimum wage, working hours, severance pay, vacation, and overtime.
Employment Standards under the Employment Standards Act
While the ESA applies to most employees in the province, it does not apply to industries that fall under federal jurisdiction (such as banks, post offices, and airlines) or diplomatic personnel. Section 3(5) of the ESA lists other exceptions that the act does not apply to, including inmates of correctional institutions, those performing work under a court order or sentence under the Youth Criminal Justice Act, and secondary school students performing work as part of a work experience program, among others.
The ESA sets out the minimum standards that an employee is entitled to. While employees are free to contract with their employer for greater entitlements than provided under the ESA, they are not able to contract out of the entitlements. An employee is not able to give up their rights under the ESA and any agreement to do so will be void.
Below are some of the main entitlements for employees, under the ESA.
Working Hours and Overtime
The ESA provides the maximum hours an employee can be required to work. Under section 17, an employee cannot be required to work more than 8 hours per day (unless a regular work day of more than 8 hours is established), or 48 hours per work week. The ESA allows the parties to agree (either written or electronically) that the employee’s work hours can exceed the maximum under the ESA.
Section 18 provides that employees are entitled to have a certain number of hours free from work. An employee must be provided at least 11 consecutive hours free from work (with the exception of on-call employees). Similarly, employees are entitled to a minimum of 8 hours between shifts (unless the total time of the shifts is less than 13 hours, or the employee agrees otherwise).
Employees are entitled to a minimum of 24 consecutive hours free from work each week, or 48 consecutive hours free from work for two consecutive weeks. In “exceptional circumstances”, an employee can be required to work more than the maximum hours (such as in an emergency).
While at work, employees are entitled to have a 30-minute eating period after 5 consecutive hours of working.
The ESA establishes the minimum wage that an employee can be paid. After January 1, 2022, but before October 1, 2022, the minimum wages are as follows:
- For students under 18 who work less than 28 hours a week, or during school holiday, $14.10 per hour;
- For hunting and fishing guides, $75.00 for less than 5 consecutive hours in a day and $150.05 for five or more hours;
- For homeworkers (employees who work at home), $16.50 per hour;
- For all other employees, $15.00 per hour.
Starting on October 1, 2022, the minimum wage will be adjusted annually, based on the Consumer Price Index.
There are some employees that are exempt from the minimum wage provisions, as set out in the Regulations of the ESA.
Part VIII of the ESA sets out the circumstances under which an employee is entitled to “overtime pay”. Overtime pay is available once an employee has worked 44 hours in a week. Overtime pay is calculated at 1 ½ times the employee’s regular wage. An employee cannot waive their right to overtime pay; however, an employee can agree to paid time off in lieu of receiving overtime.
Certain employees are exempt from the overtime provisions (for example, managers and supervisors).
Termination Pay and Severance Pay
Part XV of ESA sets out an employee’s entitlements regarding termination and severance pay.
According to s. 56(1), an employee has been terminated when:
- The employer dismisses, refuses, or is unable to continue employing the employee;
- The employee is constructively dismissed and resigns within a reasonable period; or
- The employee is laid off for a period longer than a temporary lay-off.
Under the ESA, an employee who has been employed for a minimum of 3 months cannot be terminated without written notice from the employer or payment in lieu (also known as “termination pay”). Our Ottawa wrongful dismissal lawyers can answer additional questions about termination laws.
Section 57 sets out the amount of notice an employee is entitled to, which is dependent on the period of employment. It ranges from one week for a period of employment of less than one year, to a maximum of eight weeks for a period of employment of eight or more years.
During the notice period, the employer cannot reduce wages, must continue to contribute to the employee’s benefit plans, and must continue paying wages.
There are certain exemptions to the requirement of notice or termination pay.
Certain employees are also entitled to “severance pay” under the ESA. Severance pay is not the same as termination pay (which is pay in lieu of notice). An employee will be entitled to severance pay where their employment has been severed according to section 63(1) and:
- The employee has worked at least 5 years for the employer;
- The employee is one of at least 50 employees whose employment was severed within 6 months as a result of a permanent discontinuance of the employer’s business at an establishment;
- The employer has a payroll of a minimum of $2.5 million and has severed the employment of at least 50 employees
Severance pay is calculated by multiplying the employee’s weekly wages by his or her number of complete years of employment, and the number of complete months of employment divided by 12 (for a maximum of 26 weeks).
Certain employees are not entitled to severance pay under the ESA.
It is important to note that the requirements under the ESA regarding notice periods, payment in lieu, and severance pay are statutory minimums. An employee may have greater entitlements under their employment contract or at common law.
Leaves of Absence
The ESA also provides for the following leaves of absences:
- Pregnancy leave: up to 17 weeks unpaid leave for pregnant employees if the employee was employed at least 13 weeks before the expected due date (ss.46-47);
- Parental leave: up to 61 or 63 weeks of unpaid leave for new parents if the employee was employed at least 13 weeks before the expected due date (ss. 48-49);
- Family medical leave: unpaid leave up to 28 weeks (out of 52-week period) (s. 49.1);
- Organ donor leave: unpaid leave up to 13 weeks, if employee was employed for at least 13 weeks (s. 49.2);
- Family caregiver leave: unpaid leave up to 8 weeks each year (s. 49.3);
- Critical illness leave: unpaid leave up to 37 weeks for a critically ill minor child, and 17 weeks for critically ill adult (out of 52-week period), for employees employed at least 6 consecutive months (s. 49.4);
- Child death leave: unpaid leave up to 104 weeks, for employees employed at least 6 consecutive months (s. 49.5);
- Crime-related child disappearance leave: unpaid leave up to 104 weeks, for employees employed at least 6 consecutive months (s. 49.6);
- Domestic or sexual violence leave: unpaid leave up to 10 days and 15 weeks (in calendar year), for employees employed at least 13 weeks (s. 49.7);
- Sick leave: unpaid leave up to 3 days (in calendar year), for employees employed at least 2 weeks (s. 50);
- Family responsibility leave: unpaid leave up to 3 days (in calendar year) (s. 50.0.1);
- Bereavement leave: unpaid leave up to 2 days (in calendar year) (s. 50.0.02);
- Emergency leave: declared emergencies and infectious disease emergencies: employees cannot currently take declared emergency leave as there is no declared emergency; for infectious disease emergencies, paid leave up to 3 days, with no limit on unpaid leave (until July 31, 2022) (ss. 50.1-50.1.1);
- Reservist leave (s. 50.2)
Strictly speaking, it is not necessary to retain a lawyer to make an employment standards complaint. Any employee who believes their ESA rights have been breached may contact the Ontario Ministry of Labour or the Canadian Ministry of Labour and they will investigate and enforce your complaint.
However, employees have greater rights that can only be enforced through a civil action brought to the Ontario Super Court of Justice. These would include common law rights such as claims for termination or severance pay which exceed the available compensation available through the Ministry of Labour.
Employment Standards Lawyers in Ottawa
If you have been terminated from your employment or have another employment law issue to which the ESA may apply, contact one of our Ottawa employment standards lawyers today for a free consultation, by completing our online contact form, or calling our office at (613) 518-2418.