By: Stephanie McDonald and Murtaza Najmi
What is the Employment Standards Act?
The Employment Standards Act (ESA) sets the minimumstandards for provincially-regulated workplaces in the province of Ontario. It covers things like hours of work, overtime pay, vacation, and termination entitlements. Employers must meet these minimums and cannot go below them, even if your employment contract says otherwise.
Who Does It Apply To?
The ESA applies to most provincially-regulated employees who provide services in Ontario. Provincially-regulated employees are any employees that are not federally regulated. Most employees in Ontario are provincially-regulated. Federally regulated workplaces include airlines, banks, postal service, telecommunications, railway and road transportation that cross provincial boarders, etc. A list of federally regulated industries and workplaces can be found here.
Why It Matters
The ESA protects employees from unfair treatment. It ensures that employees get at least the legal minimum wage, rest periods, and termination entitlements.
Key Minimum Standards
Here are a few of the most important rights under the ESA:
- Minimum Wage: You must be paid at least the current Ontario minimum wage.
- Hours of Work: You generally cannot be forced to work more than 8 hours a day or 48 hours a week without your consent.
- Overtime Pay: You earn 1.5 times your regular pay after 44 hours of work in a week.
- Vacation: Employees with less than 5 years’ service are entitled to 2 weeks’ paid vacation or 4% vacation pay. Employees with 5 years of service are more are entitled to 3 weeks’ paid vacation or 6% vacation pay.
- Public Holidays: You are entitled to time off or “time and a half” at 1.5 times your regular pay.
- Termination Pay: If you have 3 months or more of service, you’re entitled to notice of termination or termination pay, corresponding to how long you’ve been employed, up to 8 weeks.
- Severance Pay: If you have 5 years or more of service, and your employer has a global payroll of at least $2.5 million, you’re entitled to severance pay, corresponding to how long you’ve been employed, up to 26 weeks.
ESA vs. Common Law Rights
The ESA creates the floor for what an employer owes you on termination, but it’s not the ceiling. In addition to your rights under the ESA you also have common law rights. For example, absent an enforceable termination clause, employees are entitled to reasonable notice of the termination of their employment, which is more generous than the minimum standards under the ESA.
Even if your employer meets ESA minimums, you might still be owed more under the common law; especially if you were terminated without cause. Never accept the first severance offer your employer makes without speaking with an employment lawyer. It’s essential that a lawyer review your employment contract and severance offer in detail to determine your legal entitlements.
What Happens if an Employer Breaches the ESA?
If your employer breaches the ESA, speak with an employment lawyer. They can help you determine whether you should start a complaint at the Ministry of Labour, or start another process or proceeding.
Ministry of Labour Resources
- Your Guide to the Employment Standards Act, a plain-language guide for employees, created by the Ontario Ministry of Labour
- Employment Standards Act Policy and Interpretation Manual, a manual for legal experts to help interpret the ESA, created by the Ontario Ministry of Labour.
- Ministry of Labour Main Web Page, containing various links, information and resources.
Conclusion
If you need help navigating the ESA, or any employment issues, Workplace Sage Legal can guide you every step of the way. Knowledge is power. Book a consultation today.
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While reasonable efforts have been made to ensure the accuracy of the content provided, it does not constitute legal advice. Prior to relying on any aspect of this article, you should consult with a suitably qualified legal professional promptly in your relevant jurisdiction, to obtain advice tailored to your individual circumstances
Nothing in this article should be interpreted as forming a solicitor-client relationship or construed as a solicitation for legal services.
