Employmant Standards Act Compliance

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Chuck Tahirali, of Samfiru Tumarkin LLP discusses the potential gap between the ESA and your organizations practics.

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  • Any record or “other thing” that is relevant…versus current std: record or other think the Officer thinks may be relevant Like bees to honey – no record, benefit of doubt resolved in favour of employee Chuck’s Laws of Records #1 and #2
  • Continuous operations Fun Fact: August Civic Holiday
  • Start with: absolute right to grant or deny request for vac time off Active and inactive employment Vacation pay on OT pay; bonuses, incentives, etc. (“wages”) Vacation used for individual sick days
  • 22 months limitation period Case law where additional week of vacation enforced against employer as if emp std Example/case study: return from unpaid P/P leave – what are vacation entitlements?
  • Calendar year, part-day = whole day deduction, parallel deduction
  • MOL benefits policy – if laid off employee refuses to pay share of premiums
  • Employmant Standards Act Compliance

    1. 1. ESA COMPLIANCE CHALLENGE How Wide is the Gap Between the Ontario Employment Standards Act and Your Organization’s Practices? Chuck Tahirali, Senior HR Consultant chuck@stlawyers.ca
    2. 2. Minimum Standards Only• Can provide better benefits or entitlements but cannot contract out of Act, i.e., cannot provide lesser benefits or entitlements• Effect of Section 5(2): Greater flexibility or your own policies enforced against you?
    3. 3. Is Full Compliance Possible?• Some standards too obscure – Payment by direct deposit – Wage statements – Deductions from wages (versus reconciliations)• Some standards at odds with real-world needs and practices
    4. 4. Enforcement• 2,135 “pro-active inspections” by Employment Standards Officers in 2009• 480 prosecutions in 2008• Convictions are publicized on internet• Variety of enforcement mechanisms, including significant fines and other monetary penalties
    5. 5. Enforcement• Provincial Offences tickets• Orders to pay• Compliance Orders• Notices of Contravention• Offences and Prosecutions• Civil Proceedings
    6. 6. RECORDS• Extensive record-keeping requirements – Number of hours worked each day and each week – Written agreements e.g., hours of work – All notices, certificates, correspondence and other documents relating to leaves of absence• Retain for at least 3 years; must be readily available for inspection (even if stored offsite)
    7. 7. LIMITS ON HOURS OF WORK• 8 - 13 hours per day; up to 48 hours per week• Written agreements required to exceed limits• To be valid, fact sheet must accompany agreement and provision in agreement must confirm receipt of fact sheet• Approval from Ministry required to exceed weekly limit (and posted in workplace)
    8. 8. MEAL BREAKS• No more than 5 consecutive hours without a 30-minute meal break• May be paid or unpaid• Not an hour of work if employee not working during break; if employee works, must be paid• No requirement for coffee breaks
    9. 9. OVERTIME• After 44 hours or lower threshold• Lieu time requirements• Liability for overtime pay not avoided by requiring pre-authorization of overtime work• Salaried employees entitled to OT• Exemptions• Exempt employees may still be entitled to OT
    10. 10. PUBLIC HOLIDAYS• Basic benefit is NOT a day off with regular pay• Public holiday pay formula• Basic benefit for working on a public holiday is NOT time-and-a-half• New hires, part-time and contract employees all eligible for public holiday benefits• “Reasonable Cause”
    11. 11. VACATIONS WITH PAY• Two entitlements: Time off and vacation pay – Inactive employment – Wage/salary continuation v. % calculation• Vacation pay calculated based on “wages”• “Standard” versus “Alternative” vacation year• One-year lag or real-time vacation system?
    12. 12. VACATIONS WITH PAY• Vacation in increments of less than one week• Additional weeks of vacation• Is carry-over or forfeiture permissible?• Employee cannot agree to forego vacation and receive pay instead• Paying vacation pay with each pay cheque
    13. 13. LEAVES OF ABSENCE• Possible new leave effective July 1, 2012: Family Caregiver Leave• Personal Emergency Leave – Taken, not granted – Notification – Administration issues
    14. 14. LEAVES OF ABSENCE• Requirement to reinstate• No cap on recovery• Rate of pay upon reinstatement• Vacation entitlements following leave
    15. 15. LAYOFFS AND TERMINATION• Notice must be in writing; other requirements• Statutory notice period when more generous notice given• 13-week versus 35-week layoff• “Indefinite” layoff – Option for unionized employers
    16. 16. LAYOFFS AND TERMINATION• Severance pay: – Broken periods of service – By instalments only if employee agrees – Calculating payroll – Requirement to provide notice of resignation• Payments when employment ends• Wilful misconduct/neglect of duty
    17. 17. ESA COMPLIANCE Questions?Chuck Tahirali, Senior HR Consultant chuck@stlawyers.ca

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