Navigating Ontario’s Employment Standards Act (ESA): Part I

Ontario’s Employment Standards Act (the ESA)

The ESA sets out the minimum terms of employment for most employees in Ontario. It is a complex law that is difficult to understand. An employer cannot contract out of these minimum standards.

Did you know your organization must post a Minister of Labour poster entitled “What You Should Know About The Ontario Employment Standards Act” in your workplace?  

Does the ESA apply?

The ESA does not apply to all employees. For example, it does not apply to a secondary school student who performs work under a work experience program authorized by the school board. Did you know that it does apply to unpaid interns unless the employer can satisfy six (6) conditions?

The ESA applies to nannies and live-in caregivers who are entitled to be paid, among other things, minimum wage and overtime pay. Did you know there has been a special regulation in effect for foreign nationals who are employed as live-in caregivers, and another regulation that applies to nannies? Nannies are knowledgeable about their rights and do file complaints.

Five Minimum Standards

1. The minimum wage for most employees is $10.25 per hour. There are exemptions. For example, a student at a camp for children is not entitled to be paid minimum wage. Did you know the minimum wage is being increased to $11.00 per hour on June 1, 2014?

2. An employer is required to provide an employee with nine (9) paid statutory holidays if certain conditions are met. Did you know the Civic Holiday in August is not a statutory holiday under the ESA?

3. An employer must provide notice of termination to an employee who has worked at least 3 months unless one of the many statutory exemptions apply. Did you know there is a separate regulation that applies to termination pay and it was most recently amended in October 2012?

4. An employer must pay an employee overtime pay after 44 hours a week unless one of the many exemptions apply. Did you know that an organization can obtain a permit which allows an employer to average hours over a two or more week period and avoid paying overtime pay?

5. An employer must provide employees with up to six (6) different unpaid leaves of absence. Most employers are aware of pregnancy and parental leave but an employer must also provide time off work for organ donation and for a reservist to be deployed to the Canadian Forces. If an organization employs 50 or more employees, did you know the employer must provide each employee with up to 10 days personal emergency leave which includes time off because of the death of certain family member?

For a discussion of how complaints are investigated under the ESA, click here

For a discussion of how proposed amendments to the ESA could affect small businesses, click here

Lessons to Be Learned

1. The ESA is amended regularly. Employers should therefore review their employment contracts and employment policies regularly to ensure that they are complying with new minimum standards.

2. There are many exemptions in the ESA. Employers should therefore make themselves aware of these exemptions and take advantage of them.

3. The ESA allows employers to obtain permission to avoid certain employment standards and employers should consider obtaining this permission. For example, an employer can obtain permission to: schedule an employee more than 8 in a day or 44 in a week; average hours of work over a two or more week period; and, include vacation pay on each paycheck.

If you have any questions about the Employment Standards Act, please contact our managing partner, Doug MacLeod, at 416 317-9894 or at [email protected].