Highlights of the Employment Standards Act Ontario (ESA)


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Presentation that I used for management training on the Ontario Employment Standards Act (ESA). Provides an overview of regulations that apply to businesses in Ontario. Covers most Ontario employees with the exception of federal employees and a few others such as police officers, prison inmates, co-op students

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Highlights of the Employment Standards Act Ontario (ESA)

  2. 2. Objective • To gain familiarity with the highlights of this Ontario legislation which governs workplace practices • To minimize legal risks by learning about this legislation which forms the basis of our employment policies/contracts
  3. 3. Definition • a statute (provincial law) • establishes a minimum standard for every employment contract • ensures fairness in workplace practices
  4. 4. Purpose of the Act • To protect employees • To eliminate the need to negotiate • To ensure fairness in workplace practices
  5. 5. Jurisdiction • Covers most Ontario employees with the exception of federal employees and a few others such as police officers, prison inmates, co-op students • It must be posted in the workplace • The Ministry of Labour enforces the ESA and its regulations, provides information, investigates potential violations and resolves complaints
  6. 6. Topics Covered • Record Keeping • Hours ofWork • Overtime • Vacation • Public Holidays • Leaves: maternity, parental, emergency, family medical • Termination Notice/Severance Pay
  7. 7. Record Keeping • All employers in Ontario are required to keep written records about each person they hire for a specified period of time
  8. 8. Hours of Work • ESA dictates the maximum number of hours an employee can be required to work • In general, cannot exceed 8 hours per day OR more than 48 hours per week • Employers and employees can agree in writing to exceed these up to a maximum of 60 hours per week
  9. 9. Hours of Work Cont’d • ESA dictates the # of hours an employee must be free from work (daily, between shifts/weekly or bi-weekly) • Daily: must have 11 consecutive hours off work (Therefore, the max. number of hours worked in any 24-hour period cannot exceed 13 which includes: 12 hours of work and two 30-minute meal breaks) • Exception: not applicable to someone “called in” during a period they would not normally work
  10. 10. Hours of Work Cont’d • Between shifts: requirement of 8 hours off between shifts • Exception: does not apply if total time worked on both shifts does not exceed 13 hours (employer & employee can agree in writing for a shorter period off between shifts)
  11. 11. Hours of Work Cont’d • Weekly or Bi-weekly: employees must have a min. of 24 consecutive hours off each week; OR • 48 consecutive hours off every two weeks • Exception: only in exceptional circumstances involving a “serious interference” with operations
  12. 12. Overtime • In general, hours worked in excess of 44 in a work week are to be paid as overtime • Overtime pay is 1.5 times the regular rate of pay (“time and a half”) • Calculated on a weekly (not daily) basis or over a longer period under an “averaging agreement” where an employer and employee agree in writing to average the hours of work over a 4-week period to determine overtime
  13. 13. Overtime Cont’d • Compensation for overtime: • Can be monetary: 1.5 x hourly rate; or • Paid time off work (“time off in lieu”); 1.5 hours of paid time off work for each hour worked • Must be taken within 3 months of being earned, or within 12 months with permission • Employees cannot waive their right to overtime pay under the ESA
  14. 14. Vacation • Vacation time off: 2 week yearly entitlement after 12 months of work (unpaid) • Can be taken one week at a time, or 2 weeks together, or, if the employer and employee agree in writing, in periods of less than a week • 12 months include time away from work due to illness, layoff, and other approved leaves • Timing of vacation decided by the employer, but to be scheduled no later than 10 months after the vacation has been earned (i.e. 22 months)
  15. 15. Vacation Cont’d • Vacation Pay: minimum of 4% of “gross wages” (excluding vacation pay) earned in a 12-month period for which vacation is received • Can be paid at any time if employer and employee are in agreement • Wages on which vacation pay is based include all compensation: regular earnings, overtime pay, public holiday pay, pay in lieu of notice, but NOT severance, travelling/living allowances and benefit plan payments
  16. 16. Vacation Cont’d • Vacation and public holidays: if a public holiday falls during a vacation period, the entitlement is: - a substitute day off work with public holiday pay, or - payment of public holiday pay for that day without giving the employee a substitute day off work (if the employee agrees)
  17. 17. Vacation Cont’ • Vacation entitlement accrues during pregnancy and parental leave • Vacation pay may be NIL, as 4% of no earnings during a leave = $0 • If an employee quits or is terminated, the 4% vacation pay must be paid out to them within 7 days
  18. 18. Public Holidays • 9 statutory holidays: NewYears, Family Day, Good Friday,Victoria Day, Canada Day, Labour Day,Thanksgiving, Christmas Day, Boxing Day. • The Mission exceeds this minimum by providing Civic Day instead of Family Day and 1 Floater Stat Day
  19. 19. Public Holidays Cont’d • To become disqualified for public holiday entitlements, an employee must: • Fail, without reasonable cause to work all of their regularly scheduled day of work before or after the public holiday (first and last rule) • Fail, without reasonable cause to work their entire shift on the public holiday if they agreed to or were required to work that day
  20. 20. Public Holidays Cont’d • Scenarios: • (a) when a public holiday falls on a work day but the employee does not work it: - she gets the day off with pay • (b) when it falls on an employee’s non-work day: she gets a substitute day off with pay or gets paid for the day with no substitute day off
  21. 21. Public Holidays Cont’d (c)When an employee agrees, in writing, to work on a public holiday: - she is paid her regular wages for all hours worked + receives another regular work day off with public holiday pay; OR, if the employee agrees in writing: gets public holiday pay + premium pay for all hours worked (but no substitute day off) for a total of 2.5x her regular rate.
  22. 22. Leaves • Pregnancy Leave: • 2 pieces of legislation impact: Employment Insurance and Employment Standards • EIAct governs the monetary piece of the leave • ESA governs the protection of an employee’s job • No employee can be penalized in any way for taking a pregnancy or parental leave
  23. 23. Pregnancy Leave Cont’d • Pregnant employees have a right to up to 17 weeks of unpaid time off work • Both parents have the right to take parental leave (unpaid time off work): birth mothers who took pregnancy leave are entitled to 35 weeks; those who did not, are entitled to 37 weeks • both parents can be on leave at the same time
  24. 24. Pregnancy Leave Cont’d • Qualify if hired 13 weeks before expected date of delivery • Timing: can start no earlier than 17 weeks before the due date, but no later than the date of delivery – must be taken all at once • Notice: employee needs to provide a minimum of 2 weeks’ written notice of going on leave or 4 weeks’ written notice if resigning
  25. 25. Parental Leave • Both parents are entitled (up to 35 or 37 weeks) of unpaid leave • To qualify, must have been hired at least 13 weeks prior to the leave • Definition of parent: birth or adoptive parent, or same sex partner treating child as their own • Notice: employee to provide 2 weeks written notice, but NOT obliged to give return date • If resigning, must provide 4 weeks’ written notice
  26. 26. Parental Leave Cont’d • Timing: for birth mothers, it follows the pregnancy leave unless the baby’s coming into her care is delayed (i.e. hospitalized) • All other parents must begin the leave no later than 52 weeks after the baby is born or comes into their care
  27. 27. Parental Leave Cont’d • Rights: - to return to the same or comparable job if the old one no longer exists - must be paid at least as much as before - must receive any scheduled increases awarded in her absence - to continue in benefits/pension plans - service/seniority continue - continued accrual of vacation time - period of leave is not included in probationary period
  28. 28. Emergency Leave • Up to 10 days of unpaid time off work/calendar year because of illness, injury, certain emergencies, other urgent matters • 10 days do not need to be consecutive • A partial day off constitutes a full day taken • Employee needs to provide notice in advance whenever possible • Employer may ask for proof of need for leave
  29. 29. Family Medical Leave • Possible 8-week leave to provide care or support to a family member with serious medical conditions • Significant risk of death within 26 weeks • Need of certificate from qualified health practitioner • Need to provide notice, but leave not dependent on notice • Timing: begins no earlier than 1st day of 26-week period and ends on last day of 26 week period or last day of the week in which family member dies
  30. 30. Termination and Notice • For employees continuously employed for more than 3 months: must provide written notice of termination or termination pay (= pay in lieu of notice) or a combination of both • Intended as replacement income for a period of time • Statutory notice period is based on years of employment (less than 3 months = 0 notice required; 3 months to one year = 1 week notice required; 1-3 years = 2 weeks notice required; up to 8 years of work requiring a maximum of 8 weeks of notice.
  31. 31. Notice • During notice period conditions of employment must not be altered • Vacation may not be scheduled during the notice period, unless the employee agrees • Benefits must continue during notice period • Calculation of “regular wages” for pay in lieu of notice for those without a regular work week: average regular wages over a 12-week worked period immediately preceding the date of notice
  32. 32. Notice Cont’d • “regular wages” do not include vacation pay, overtime, public holiday pay, premium pay, termination pay or severance pay • Notice not required for employees if: dismissed for just cause; free to choose without penalty whether or not they work when offered work; hired for a specific length of time and purpose, unless the contract ends early; refuses reasonable alternate employment; does not return to work when recalled; cannot complete work due to unforeseen circumstances (i.e. flood or fire); is terminated as a result of a strike or lockout
  33. 33. Severance Pay • Compensation paid to qualified employees whose employment has been severed after working for the employer for 5 or more years • Separate from termination pay (pay in lieu of notice) • Compensates for loss of seniority and job related benefits and recognizes long service
  34. 34. Severance Cont’d • Calculation of severance pay: employees regular wages X the sum of completed years of employment (partial years included) • Maximum severance is 26 weeks • For those without regular wages for a regular work week, average the regular wages received over the 12 weeks worked immediately prior to when employment was severed
  35. 35. For more information….. Go to the Ontario Ministry of Labour`s website: http://www.labour.gov.on.ca/english/es/