Employment Standards Act: Rights and Responsibilities

• Author: Netta Romano
• Pages: 29-72

29

Employment

StandardsAct

RIGHTS AND RESPONSIBILITIES

2

Learning Outcomes

After completing this chapter, you will be able to:

• Understand the purpose of the Ontario Employment

Standards Act, 2000 in setting minimum rights for

employees.

• Identify the general requirements regarding the

application of the ESA.

• Identify to whom the ESA applies and, if so, the

extent of exemptions and exceptions that apply to

jobcategories in the ESA.

• Identify the minimum standards that apply to workers

in Ontario, including wages, hours of work, public

holidays, overtime pay, vacation, statutory leaves, equal

pay for equal work, and temporary help agencies.

• Identify the protections available to employees who

exercise their rights to statutory leaves, including

pregnancy, parental, family medical, and personal

emergency leaves.

• Describe the rights of employees on temporary layoff.

• Outline the rights of employees who have been

terminated.

Introduction ........................ 30

General Requirements ................ 31

Minimum Employment Standards ...... 37

Termination Requirements

Under the ESA ................... 54

Continuity of Employment ............ 68

Employee Rights Where

Employer Is Insolvent ............. 69

Further Reading ..................... 70

Related Websites .................... 70

Key Terms .......................... 70

Review Questions ................... 70

Discussion Questions ................. 71

© 2022 Emond Montgomery Publications. All Rights Reserved.

30 EMPLOYMENT LAW FOR PARALEGALS

Introduction

The Ontario Employment Standards Act, 2000

1 sets out minimum standards ofwork

for employees in Ontario, including hours of work, overtime premium pay,public

holidays, vacation time and pay, and pregnancy and parental leave. It alsoestablishes

minimum requirements with respect to termination notice and severance pay. An

employer is free to exceed these statutory minimum standards, but it cannot, even

with the employee’s agreement, fail to meet them. The Act, in essence, creates a

“oor” of rights to which all workers in Ontario (subject to certain exceptions and

exemptions) have a right. This chapter outlines the key provisions of the ESA—essen-

tial knowledge that paralegals need to be familiar with when providing legal services

to workers who believe their rights in the workplace have not been honoured. Chapter

3 outlines the process for enforcing those rights and promoting compliance with the

Act at both the Ministry of Labour, Training and Skills Development and in Provincial

Offences Court.

Since its last extensive overhaul in 2000, the ESA has undergone amendments on

a yearly basis—some minor, some more extensive. In June 2017, the provincial Lib-

eral government introduced Bill 148, the Fair Workplaces, Better Jobs Act, 2017.

2

The Bill introduced signicant changes to both the ESA and the Labour Relations

Act, 1995.

3 The amendments reected a legislative response to chal lenges in the

workplace, including scheduling, equal pay for equal work, increased vacation

entitlement, paid sick days, and increased parental leave. Most signicantly, the Bill

entrenched minimum wage increases directly in the Act instead of leaving this pro-

vision to regulation, thereby making it more difcult to amend going forward. As

stated during the second reading of Bill 148 before the Legislative Assembly of

Ontar io:

When you think of the world of work in the mid-1990s—it’s almost pre-email,

cellphones were large—there were all sorts of things out there in the world of

work that simply don’t exist anymore … But the world of work has changed.

The economy has changed. Globalization and other pressures have been brought

to bear on the Ontario economy and those workplaces that existed in the mid-

1990s have changed. But the rules haven’t. The rules we had in place are still

from the 1990s.

4

The FWBJA received royal assent on November 27, 2017. In October 2018, the new

Conservative government in Ontario introduced Bill 47, the Making Ontario Open for

Business Act, 2018,

5 amending several of the key changes made by Bill 148 to the ESA

1 SO 2000, c 41 [ESA].

2 SO 2017, c 22 [FWBJA].

3 SO 1995, c 1, Schedule A [LRA].

4 “Bill 148, Fair Workplaces, Be tter Jobs Act, 2017,” 2nd reading, Legislative Assembly of Ontario Debates (Hansard)

41-2, No 91 (12 September 2017) at 4903 (Hon Kevin Daniel Flynn).

5 Bill 47, An Act to amend the Employment Standar ds Act, 2000, the Labour Rel ations Act, 1995 and the Ontario

College of Trades and Appre nticeship Act, 2009 and make compleme ntary amendments to other Act s, 1st Sess,

42nd Leg, Ontario, 2018 (assented to 21 Novemb er 2018), SO 2018, c 14.

© 2022 Emond Montgomery Publications. All Rights Reserved.

CHAPTER 2 EMPLOYMENT STANDARDSACT 31

and the LRA. Bill 47 received royal assent in November 2018, just in time to reverse

several of the previous government’s amendments, which were to take effect on

January 1, 2019.

General Requirements

Application (Section 3 and O Reg 285/01)

The ESA’s application is set out in section 3. Most employees and employers in Ontario

are covered. Those not covered include the following:

• employees in federally regulated sectors, such as banks, airlines, and

broadcasting;

• secondary school students working in a work-experience program authorized

by their school board;

• college or university students working under a program approved by the

institution;

• individuals involved in community participation under the Ontario Works Act,

1997 ;

6

• police ofcers, except with respect to the Act’s lie detector provisions (subject

to the Police Services Act);

7

• employees of embassies or consulates of foreign nations;

• inmates of correctional institutions taking part in work programs;

• individuals performing work under an order or sentence of a court or as part of

an extrajudicial measure under the Youth Criminal Justice Act;

8

• people working in simulated jobs for the purpose of rehabilitation; and

• people who hold political, judicial, religious, or trade union ofces.

Certain employees are exempt only from some parts of the Act or are subject to

special rules as set out in O Reg 285/01. For example, managers and supervisory

employees are not covered by the hours of work and overtime pay provisions. To fall

within the scope of the exemption, the position must be truly managerial—carrying

the power to hire and make independent decisions. Simply giving an employee the

title of “manager” will not make them exempt from those requirements. Similarly,

professional employees, such as accountants and lawyers, and farm workers directly

employed in primary production are exempt from provisions regarding minimum

wage, maximum hours of work, overtime pay, paid public holidays, and vacation

pay. Government (Crown) employees are exempt from most, but not all, sections of

the Act. Section 5.1 prohibits employers from categorizing a worker as an independ-

ent contractor, thereby disentitling the worker from the protections in the ESA.

6 SO 1997, c 25, Schedule A.

7 RSO 1990, c P.15.

8 SC 2002, c 1.

© 2022 Emond Montgomery Publications. All Rights Reserved.