Geographical barriers don’t exist in today’s business world. But when your employees travel outside Ontario for work, have you considered which employment laws apply? And if this is on a regular basis, you may be on the hook for extra pay.
Did you know that the Employment Standard Act (ESA) applies to work performed OUTSIDE Ontario if it is a continuation of work performed in Ontario? And if the work is not a continuation of work performed in Ontario, did you know the law of the other province generally applies?
Additionally, in some cases employees are entitled to be paid for travel time. In a recent ruling, one adjudicator has stated: “…there is a qualitative difference between …the time it takes to travel from one’s home to one’s place of work, and the time one travels on the employer’s business. The latter is compensable as time worked, while the former is not.”
Navigating the Laws when Employees Travel
For employees who travel outside Ontario as part of their job, is your organization complying with the applicable employment standards law?
For example, a non-managerial employee travelling to Manitoba, Saskatchewan, Alberta or British Columbia is generally entitled to overtime pay after 8 hours in a day as opposed to after 44 hours in a week which is the minimum standard in Ontario.
In this regard, section 5 (2) of the ESA states: If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.
In this example, is your organization paying the greater overtime benefit? Are there ways of minimizing this?
Yes, You Don’t Necessarily Have to Pay the Higher Employment Standard
For employees travelling outside Ontario, an employer may be able to minimize the amount of additional compensation owed because of a more generous employment standard within the employee’s contract.
Alternatively, in some provinces the employer may be able to obtain an exemption from the more generous minimum standard.
Questions to be Asked When Employees Travel out of Province
1. If an employee is travelling to another province, are the minimum employment standards in that province greater than in Ontario?
2. If so, what can be done to minimize any additional costs that are associated with a higher minimum standard? In particular, can your organization enter into a contract with the employee to address issues that arise in connection with the out of province work?
3. Can your organization apply for (i) a permit or (ii) an exemption from the higher employment standard in the other province?
MacLeod Law Firm: Employment & Labour Lawyers
In February 2017, after a 40 day trial, an Ontario trial judge ordered the RCMP to pay Peter Merrifield $100,000 in general damages, $41,000 in special damages, and $825,000 in legal costs. In doing so, the trial judge recognized the tort of harassment. For my blog on...read more
Wrongful Dismissal Update: How to Reduce Termination Pay for Employees Who Earn Variable Compensation
Some employees receive a large percentage of their total compensation in variable compensation. A much litigated issue is whether the employer is required to pay variable compensation to a terminated employee during the applicable notice period and if so how is this...read more
An arbitrator who upholds a grievance can reinstate the employee, or order the employer to pay the employee damages. In a 2018 arbitration case, Arbitrator Surdykowksi decided how to calculate damages for an employee who was not reinstated. Facts Dr. Bernard was a...read more