Employment Standards Act

Employment Standards Act, “ESA RSO 2000”

PART I – Definitions

According to the Employment Standards Act (ESA), security services fall under the category of “Building services,” which encompasses various types of services such as food preparation, serving, cleaning, and other designated services related to a building.

A “Building services provider” or simply a “provider” refers to an individual or entity that offers building services for a particular location. This category includes Security Guards, as well as property owners or managers who provide building services for the building they own or oversee.

The term “Continuous operation” pertains to an activity or a segment of an activity that typically operates 24 hours a day without interruption during a seven-day period. Security services, for instance, often fall into this category.

The definition of an “Employee” encompasses individuals who perform work in exchange for compensation, including managers, executives, and individuals who provide services to an employer for pay. This also includes individuals who receive training from someone recognized as an employer.

An “Employer” refers to an entity or individual, such as an owner, manager, superintendent, or overseer (supervisor, lead hand, trainer), who holds control, responsibility, or authority over the employment of an individual.

“Premium pay” signifies an employee’s entitlement to additional compensation for working on a public holiday.

“Public holiday” means any of the following:

New Year’s Day.
Good
Victoria
Canada
Labour
Thanksgiving
Christmas
December
Any day prescribed as a public holiday (In Ontario, this includes Family Day)

“Trade union” means an organization that represents employees in collective bargaining under any of the following:

The Labour Relations Act,
The Crown Employees Collective Bargaining Act,
Part 1 of the Education Act.
Part IX of the Fire Protection and Prevention Act,
The Colleges Collective Bargaining Act,
Any prescribed Acts or provisions of Acts;

Agreements in writing

An agreement between an employer and an employee is considered to refer to an agreement that is documented in writing or to the act of both parties agreeing in writing to undertake a certain action. It’s important to note that, except in the case of a collective agreement, there is no strict requirement for the agreement to be in written form.

PART III – How This Act Applies

The provisions outlined in this Act are applicable to an employee and their employer if the employee’s job is to be carried out within Ontario. Additionally, if the employee’s work is intended to be conducted outside Ontario but is a continuation of work initially performed within Ontario, these employment standards still apply. For instance, this could pertain to a Private Investigator continuing their investigation outside the province.

However, it’s important to note that this Act does not extend to include secondary school students who are engaged in work under a school board-authorized work experience program, nor does it apply to individuals working within programs approved by a college of applied arts and technology or a university.

It’s crucial to emphasize that employment standards established in this Act cannot be contracted out or waived. If an employment contract or another piece of legislation provides a greater benefit or right to an employee compared to the employment standard, the more favorable provision applies.

Furthermore, any settlement reached on behalf of an employee by a labor union representing them is legally binding on the employee.

Agents

An agreement or authorization that an employee is legally allowed to make or provide under this Act can also be made or provided by their representative (agent), and it holds legal validity and obligation for the employee.

PART IV – Continuity of Employment in the Event of Sale of Business, etc

If a business is sold, and the buyer chooses to keep employing an employee who previously worked for the seller, the Act considers the employee’s employment to be ongoing when calculating their length of service or employment duration. However, this calculation exception doesn’t apply if the buyer hires the employee more than 13 weeks after the employee left the business.

No termination or severance

This section is applicable if a new building services provider replaces the previous provider for a building, and an employee continues to work for the new provider. In this case, the employment is regarded as continuous for the purposes outlined in this Act, including the calculation of the employee’s length of service or employment with the new provider.

However, this rule does not apply if the day on which the new provider hires the employee is more than 13 weeks after the employee has left the business.

PART V – Payment of wages Statement of wages

On or before the day of an employee’s payday, the employer is required to provide the employee with a written statement. This statement should detail the pay period for which the wages are being paid, the wage rate, the total gross wages earned, and, unless this information is provided to the employee through an alternate means, an explanation of how that amount was calculated.

Furthermore, this statement must encompass any deductions made from the wages, specifying both the amount and the purpose of each deduction. Additionally, it should include the total gross amount of any vacation pay being disbursed to the employee.

It’s essential to note that an employer is not permitted to withhold wages owed to an employee, make deductions from an employee’s wages, or require the employee to return their wages unless they are duly authorized to do so under this section. Such authorization might involve a written agreement for payment related to items like uniforms, equipment, tools, etc.

PART VII – Limits on Hours of Work & Eating Periods

An employer is prohibited from mandating or allowing an employee to work beyond a duration of eight hours in a single day. If the employer has established a standard workday that exceeds eight hours for an employee, that workday should not exceed the specified number of hours. Additionally, the employee should not work more than 48 hours in a given workweek.

Exception:

If an employer has obtained approval from the Ministry, they may establish an agreement with an employee or a group of employees that allows for the following:

An employee’s daily hours of work may exceed 8 hours if the employee has an agreement with the employer specifying that they will work up to a certain number of hours in a day, provided it does not exceed the number specified in the agreement. Note that this exception applies to daily hours and not weekly hours.
An employee’s weekly hours of work may exceed 48 hours if there is an agreement between the employee and the employer stating that the employee will work up to a specified number of hours beyond the limit.

For instance, regularly scheduled shifts lasting 10 hours each for four consecutive days could be averaged over a week or several weeks, subject to specific restrictions outlined by the Ministry and/or a Union (as specified in a Collective Bargaining Agreement).

Additionally, an employer must grant an employee a continuous period of at least 11 hours in which they are not expected to work each day. However, this rule does not apply to an employee who is on call and called in during a period when they would not typically be required to work.

Regarding shifts scheduled one after another, an employer must provide an employee with at least eight hours free from work between shifts, unless the total time worked across successive shifts does not exceed 13 hours or unless there is an agreement between the employer and the employee indicating otherwise.

Lastly, an employer is obligated to provide an employee with a period free from work equivalent to at least 24 consecutive hours within every work week or at least 48 consecutive hours within every two consecutive work weeks.

Exceptional circumstances

An employer can require an employee to work more than the maximum hours allowed under section [referring to the section that specifies maximum working hours] or during a period designated for rest under section [referring to the section that prescribes rest periods] only under the following circumstances and to the extent necessary to prevent significant disruption to the employer’s regular business operations:

Handling Emergencies: When there is an emergency situation that requires immediate attention.
Ensuring Essential Public Services: If an unforeseen event occurs that jeopardizes the continuous delivery of vital public services, regardless of the entity responsible for delivering them.
Maintaining Continuous or Seasonal Operations: In the event of unforeseen circumstances that threaten the uninterrupted operation of continuous processes or seasonal activities.
Conducting Urgent Repairs: To perform urgent repair work on the employer’s machinery or equipment, which is crucial to the employer’s operations.

Eating periods

Employers are required to provide employees with a 30-minute eating period, scheduled at intervals to ensure that employees do not work continuously for more than five hours without a break for eating. However, this rule can be waived if both the employer and the employee agree, either verbally or in writing, to have two eating periods totaling at least 30 minutes within each consecutive five-hour period.

It’s important to note that employers are not obligated to compensate employees for eating periods during which no work is performed, unless such compensation is specified in the employment contract.

PART VIII – Overtime Pay Overtime threshold

Employers are required to compensate employees with overtime pay at a rate of at least one and one-half times their regular rate for each hour worked beyond 44 hours in a week. If a different limit is allowed, the overtime pay applies to the hours exceeding that limit.

Averaging

Employees can have their hours of work averaged over two or more consecutive weeks to determine their entitlement to overtime pay if they have an agreement with the employer specifying the number of weeks over which this averaging will occur. However, this arrangement is subject to restrictions, including the approval of the Ministry and any agreements made by the union, if applicable.

PART IX – Minimum wage

Employers are required to pay their employees at least the minimum wage as prescribed by the relevant employment standards in effect at the time. This calculation is done on a pay period basis by dividing the amount of regular wages paid to the employee in the pay period by the number of hours the employee worked during that pay period, excluding hours for which overtime pay or premium pay is provided.

When calculating overtime pay and premium pay, it must be ensured that the resulting pay, when divided by the number of overtime hours worked, is at least equal to one and a half times the prescribed minimum wage. This ensures that employees are compensated fairly for their overtime and premium hours worked.

PART X – Public holiday pay

An employee’s public holiday pay for a specific public holiday is determined as follows: the total amount of regular wages earned by the employee and vacation pay payable to the employee in the four work weeks preceding the work week in which the public holiday occurred is divided by 20. This calculation provides the employee’s entitlement to public holiday pay. Alternatively, if a different calculation method is prescribed, it should be used to determine the amount of public holiday pay.

In situations where an employer is obligated to pay premium pay to an employee under this Part, the employee must be compensated at a rate of at least one and a half times their regular rate for the hours worked on a public holiday.

Certain operations, such as hospitals, continuous operations, hotels, motels, tourist resorts, restaurants, or taverns, may require employees to work on a public holiday as part of their regular employment duties.

PART XI – Right to vacation with pay

In accordance with the regulations, an employer is obligated to provide an employee with a vacation of at least two weeks after the completion of each vacation entitlement year. This vacation year encompasses both active employment periods and any periods of inactive employment.

When an employee does not take their vacation in complete weeks, the employer should determine the number of vacation days to which the employee is entitled based on either:

The number of days in the employee’s regular workweek.
If the employee does not have a regular workweek, the average number of days the employee worked per week during the most recently completed vacation entitlement year.

This ensures that employees receive their due vacation entitlement, even when their work schedules are irregular or do not conform to a standard workweek.

PART XII – Equal pay for equal work

Employers are prohibited from paying one gender less than the other when employees of different sexes perform substantially the same kind of work in the same establishment. This applies when their work demands similar levels of skill, effort, and responsibility, and they work under comparable conditions.

However, this rule doesn’t apply when the pay difference is based on factors other than gender, such as a seniority system, merit-based system, a system measuring earnings by quantity or quality of production, or any other legitimate factor.

Employers are also not allowed to reduce an employee’s pay to equalize pay between two employees who previously received different pay rates based on gender.

Trade unions and other organizations are similarly prohibited from causing or attempting to cause employers to violate this rule.

PART XIV – Leaves of absence

“Parent” encompasses an individual who welcomes a child through adoption and someone engaged in a stable relationship with a child’s parent, intending to care for the child as their own.

“Spouse” refers to a spouse as defined in section 1 of the Family Law Act or two individuals cohabiting in a romantic partnership outside of marriage.

Regarding pregnancy leave: A pregnant employee is eligible for unpaid leave unless her due date is less than 13 weeks from her employment start date. She can initiate her pregnancy leave no earlier than 17 weeks before her due date or the day of childbirth.

The end date of an employee’s pregnancy leave is as follows:

If she qualifies for parental leave, it concludes 17 weeks after the pregnancy leave began.
If she is not eligible for parental leave, it ends on the later of either 17 weeks from the start of pregnancy leave or six weeks after giving birth, experiencing a stillbirth, or miscarriage.

An employee can choose to conclude her leave before the aforementioned day by notifying her employer in writing at least four weeks before the desired end date.

Parental leave

An employee who has worked for a minimum of 13 weeks and is a parent of a child is eligible for unpaid leave following the child’s birth or when the child comes under the employee’s care and supervision for the first time.

Parental leave can commence no later than 52 weeks after the child’s birth or first placement in the employee’s custody, care, and control.

If an employee has already taken pregnancy leave, her parental leave must begin when her pregnancy leave ends, unless the child has not yet been placed in her custody, care, and control for the first time.

To initiate parental leave, an employee must provide written notice to the employer at least two weeks before the intended start date of the leave.

In cases where an employer regularly employs 50 or more employees, an employee is entitled to a leave of absence without pay for specific reasons, including:

Personal Illness, Injury, or Medical Condition: If the employee themselves is facing a personal illness, injury, or medical condition that requires their absence from work.
Death, Illness, Injury, or Medical Emergency of a Described Individual: When a family member or individual described below is dealing with a serious situation:
- The employee’s spouse.
- A parent, step-parent, or foster parent of the employee or the employee’s spouse.
- A child, step-child, or foster child of the employee or the employee’s spouse.
- A grandparent, step-grandparent, grandchild, or step-grandchild of the employee or of the employee’s spouse.
- The spouse of a child of the employee.
- The employee’s brother or sister.
- A relative of the employee who is dependent on the employee for care or assistance.

This leave of absence without pay provides employees with the flexibility to address critical personal matters, including medical conditions, emergencies, and supporting their family members during challenging times.

An employee desiring to utilize leave in accordance with this provision should inform their employer of their intention to do so. Each calendar year, an employee is entitled to a maximum of 10 days of leave under this provision.

Should an employee take any portion of a day as leave under this provision, the employer has the discretion to consider it as a full day of leave for record-keeping purposes. Additionally, the employer may request that the employee provide reasonable evidence to substantiate their entitlement to the leave.

Member of the reserves

An employee has the right to take an unpaid leave of absence if they are a reservist and won’t be able to fulfill their job duties. This situation arises when the employee is deployed to a Canadian Forces operation outside Canada or when they are deployed to a Canadian Forces operation within Canada that deals with an emergency or its aftermath.

Participation in activities related to these operations, whether inside or outside Canada, as mandated by the Canadian Forces, is considered part of the deployment for the purposes of this leave.

To be eligible for this leave, an employee must have worked for the employer for a period of time as prescribed by law or, if there is no specified period, for at least six consecutive months.

PART XV – Termination and Severance of Employment

An employer is not allowed to terminate the employment of an employee who has worked continuously for three months or more unless the employer provides written notice of termination. Alternatively, the employer may terminate the employment without notice or with less notice than required under specific circumstances, including if the employer:

Provides the employee with a lump sum payment equivalent to what the employee would have received if proper notice had been given.
Continues to make the necessary contributions to benefit plans to maintain the benefits the employee would have received if they had remained employed during the notice period to which they would have been entitled.

Temporary lay-off

A temporary layoff refers to a situation where an employee is laid off for a duration of no more than 13 weeks within a span of 20 consecutive weeks or for less than 35 weeks within a period of 52 consecutive weeks. During this layoff, certain conditions must be met:

The employee continues to receive substantial payments from the employer.
The employer keeps making payments for the employee’s benefit under a valid retirement or pension plan or a legitimate group or employee insurance plan.
The employee receives supplementary unemployment benefits.

Temporary lay-off not termination

An employer who has temporarily laid off an employee without specifying a date for their return to work will not be considered to have terminated the employment, as long as the duration of the layoff does not exceed the allowable time limit.

The notice of termination and entitlement to severance pay in Canada can vary based on the length of an employee’s period of employment. Here are the notice periods required by law for different employment durations:

One Week Notice: If the employee’s period of employment is less than one year.
Two Weeks Notice: If the employee’s period of employment is one year or more and fewer than three years.
Three Weeks Notice: If the employee’s period of employment is three years or more and fewer than four years.
Four Weeks Notice: If the employee’s period of employment is four years or more and fewer than five years.
Five Weeks Notice: If the employee’s period of employment is five years or more and fewer than six years.
Six Weeks Notice: If the employee’s period of employment is six years or more and fewer than seven years.
Seven Weeks Notice: If the employee’s period of employment is seven years or more and fewer than eight years.
Eight Weeks Notice: If the employee’s period of employment is eight years or more.

Additionally, employees may be entitled to severance pay in certain situations, typically when they have been employed for a specific duration and meet other eligibility criteria. Severance pay is compensation provided to employees who are terminated or laid off due to factors beyond their control, such as business closures or significant workforce reductions. The specific rules and eligibility criteria for severance pay can vary by province or territory in Canada. Employees should consult with their employer or a legal professional for detailed information regarding their severance entitlements.

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If an employer severs an employment relationship with an employee due to a permanent discontinuance of all or part of the employer’s business at an establishment, and the employee has been employed by the same employer for five years or more, severance pay must be provided. This applies if the employee is one of 50 or more employees whose employment is severed within a six-month period as a result of the discontinuance.

PART XVI – Lie Detectors

An employee has the right to refuse to take a lie detector test, cannot be asked to take one, and cannot be required to take such a test.

No one is allowed to directly or indirectly compel or influence an employee to undergo a lie detector test.

It is prohibited to disclose to an employer that an employee has taken a lie detector test or reveal the test results to an employer.

This regulation does not prevent an individual from being asked, consenting to, and taking a lie detector test administered on behalf of a police force in Ontario or by a member of a police force in Ontario as part of a criminal investigation.

PART XVIII.1 – Temporary Help Agencies

In Canada, a temporary help agency is an employer that hires individuals with the intent of assigning them to perform temporary work for the agency’s clients. When an assignment employee is assigned by a temporary help agency to perform temporary work for a client and has started that work, the agency may impose a fee on the client if the client later decides to hire the employee permanently. However, there are specific rules regarding when this fee can be charged:

Timing: The fee for hiring an assignment employee permanently can only be charged within a six-month period. This six-month period starts from the day when the employee first began working for the agency’s client.

It’s important for both temporary help agencies and their clients to be aware of these regulations to ensure compliance with labor laws in Canada. These rules are in place to protect the rights and interests of temporary employees and to prevent exploitation by agencies or clients.

PART XIX – Building Services Providers

This section pertains to situations where a building services provider for a building is replaced by a new provider and deals with termination and severance pay for employees in such cases:

The new provider must adhere to the regulations outlined in Part XV (Termination and Severance of Employment) concerning all employees of the previous provider who are engaged in delivering services at the premises and who are not hired by the new provider. It’s as if the new provider terminated and severed the employment of these employees.
If a provider stops providing services at a premises and no longer employs an employee, the provider must compensate the employee for any accrued vacation pay.

PART XXI – Who enforces this Act and what they can do Investigation and inspection powers

An employment standards officer has the authority to enter and inspect any location without needing a warrant. This is done to investigate potential violations of this Act or to ensure compliance with it.

However, this power to enter and inspect a place without a warrant can only be exercised during the place’s regular business hours or, if it doesn’t have regular business hours, during daylight hours.

It’s important to note that this power cannot be used to enter and inspect a part of the place that is used as a dwelling, unless the occupant of the dwelling consents or a warrant has been issued.

Additionally, employment standards officers are not permitted to use force to gain entry to a place. They must provide evidence of their appointment upon request.

During their investigation or inspection, employment standards officers have the authority to question any person about matters they believe may be relevant to the investigation or inspection.

Obstruction

It is prohibited for any individual to hinder, obstruct, or interfere with an employment standards officer who is conducting an investigation or inspection. This includes any attempts to hinder, obstruct, or interfere with their work.

Furthermore, it is against the law for anyone to refuse to answer questions posed by an employment standards officer during an investigation or inspection, particularly when these questions are related to matters that the officer deems relevant. Additionally, providing false or misleading information to an employment standards officer about matters that they are investigating or inspecting is also prohibited.

No person should attempt to prevent or obstruct an employment standards officer from making inquiries of any individual during the course of their duties. These provisions are in place to ensure the effective enforcement of employment standards and to maintain the integrity of investigations and inspections.

PART XXII- Complaints and enforcement

Any person who believes that the Employment Standards Act has been violated or is currently being violated can submit a complaint to the Ministry in a written or electronic format. A complaint must be submitted in a format approved by the Director; otherwise, it will not be considered filed.
Complaints related to violations that occurred more than two years before the date of filing will not be accepted.
An employee who files a complaint under this Act concerning unpaid wages or non-compliance with Part XIII (Benefit Plans) cannot initiate a civil lawsuit for the same issue.
If an employee files a complaint under this Act claiming entitlement to termination pay or severance pay, they cannot simultaneously pursue a wrongful dismissal lawsuit if both the complaint and the lawsuit concern the same termination or severance of employment.
An employee who initiates a civil lawsuit regarding unpaid wages or non-compliance with Part XIII (Benefit Plans) cannot later file a complaint or have one investigated for the same matter.
If an employee starts a civil lawsuit for wrongful dismissal, they cannot file a complaint alleging entitlement to termination pay or severance pay or have such a complaint investigated if both the lawsuit and the complaint pertain to the same termination or severance of employment.

Enforcement under Collective Agreement

If an employer is or has been subject to a collective agreement, this Act can be enforced against the employer as if it were integrated into the collective agreement concerning any reported violation of this Act that occurs.

Complaint not permitted

An employee who is represented by a trade union that is or was involved in a collective agreement may not submit a complaint alleging a violation of this Act that is enforceable under the terms of the collective agreement.

Employee bound by decision of union