Ontario
The Employment Standards Act

The Employment Standards Act is the law that contains Ontario's basic rules about working and employing people. Both workers and employers have rights and responsibilities under the Act. These are some of the rules that couriers should know.

The ESA does not apply if your courier company does a significant amount of work that is inter-provincial or international. In that case you are covered under the federal Canada Labour Code which has similar standards to the ESA. For more information see the Human Resources and Skills Development (HRSD) Labour Standards  information page:
http://www.hrsdc.gc.ca/asp/gateway.asp?hr=en/lp/spila/clli/eslc/01Employment_Standards_Legislation_in_Canada.shtml&hs=lxn

One caution  - the Ministry of Labour must first make a determination as to whether you should be classified as an employee (vs independent contractor) before you qualify for coverage under the Employment Standards Act.

Vacation Pay

After working for an employer for 12 full months, an employee is entitled to a minimum of two weeks vacation with pay each year.

An employee, who works for an employer for less than 12 months and quits or is terminated, is entitled to receive at least 4% of the total wages as vacation pay.

Deductions

An employer must deduct such things as income tax, Canada Pension Plan and Employment Insurance from an employee's wages. Other deductions can be made only if the employee agrees to the deduction in writing. This agreement is called an "authorization". But there are limits to the deductions an employer can make.

Any authorization must state the amount that can be deducted. If it says "any money missing" or "any money I owe to my employer", it is not legal.

Even with a signed authorization, the employer can't make deductions from an employee's pay if:

Minimum Wage

Minimum wage is the lowest hourly wage rate an employer can pay employees. Full-time and part-time employees are entitled to minimum wage. Minimum wage applies regardless of how you are paid - such as piece-work or commission.

The general, hourly rate of minimum wage effective February 1, 2005 is $7.45 per hour. It will rise to $7.75 per hour on February 1, 2006 and $8.00 per hour on February 1, 2007.

Employees must be paid for all hours worked. Any changes to the minimum wage will be advertised.

Hours of Work

Normal working limits for most employees in Ontario are 8 hours a day and 48 hours a week. An employee may not work more than 8 hours a day and 48 hours a week.

An employer and an employee can agree in writing that the employee will work more but  prior to making the agreement, the employer must give the employee the Information Sheet for Employees About Hours of Work and Overtime Pay prepared by the Director of Employment Standards that describes the hours of work and overtime rules in the ESA, and the employee has acknowledged in the agreement receipt of the Information Sheet.

Meals Breaks: An employee cannot work more than 5 hours in a row without getting a 30-minute eating period free from work. If the employee and employer agree, the 30-minute eating period can be taken as two shorter breaks within a period of five hours. Together the two eating periods must total at least 30 minutes. Agreements to divide the 30-minute meal break into two shorter breaks do not have to be in writing.

Overtime Pay

Under the law overtime pay is one-and-one-half times the regular wage. Sometimes this is called "time and a half". For example if the regular wage is $8.00 an hour, then overtime pay would be:

$8.00+$4.00 (1/2 of $8.00) = $12.00

Overtime pay starts for most employees after they have worked 44 hours in a work week unless the employer an employee agree to starting it before 44 hours.

However, for drivers and drivers' helpers on a 'for hire' delivery vehicle for local cartage, overtime pay is 1½ × regular rate for each hour in excess of 50 in a work week. This means couriers’ overtime starts after 50 hours in a work week.

How to Calculate Overtime for piece-workers

If you are paid for the amount of work you do, and not for the number of hours you work, you calculate your overtime this way.

Take the total amount you earned over a pay period and divide it by the number of hours you worked in that same period. For example:

Your piece-work pay over one workweek was $580.00. During this week, you worked a total of 58 hours. $580.00 divided by 58 is $10.00 an hour.

You have worked eight (8) hours of overtime in this week (58 - 50 = 8). You are entitled to eight (8) hours overtime pay at one and a half (1½) times your regular pay of $10.00 an hour. Your overtime pay is $15.00 an hour.

You earned $10.00 an hour pay for these hours already. So you are entitled to an extra $5.00 an hour for the four (8) hours of overtime, or $40.00 extra.
 
Time Off in lieu of Overtime Pay: If the employee and employer agree in writing, an employee can "bank" time or take "time off in lieu" of overtime pay. If an employee has agreed to bank overtime hours, he or she must be given 1½ hours of paid time off work for each hour of overtime worked. Paid time off must be taken within three months of the week in which it was earned or, if the employee agrees in writing, within 12 months.

If an employee's job ends before he or she has taken the paid time off, the employee must receive overtime pay, no later than seven days after the date the employment ended, or on what would have been the employee's next pay day, whichever is later.

Public Holidays

Under the law, Ontario has eight paid public holidays:
 
New Year's Day Good Friday
Victoria Day Canada Day 
Labour Day Thanksgiving Day
Christmas Day December 26 (Boxing Day) 

Most Ontario municipalities (including Toronto) also recognize the first Monday in August as Civic Holiday (paid public holiday)

Note: If your company falls under the federal jurisdiction Remembrance Day (November 11) is also a paid public holiday.

Most employees who qualify for paid public holidays don't have to work on these days, but are still paid their regular wages for the day.

To qualify for a paid public holiday, a full-time or part-time worker must have:
Important: Elect to work employees may choose to work when requested and may refuse work without penalty. They are not entitled to payment for public holidays.

All these rules must apply to the employee at the same time. If any rule does not apply, then the employee does not qualify for a public holiday.

Most employees who agree to work on a public holiday must be paid time and one-half for working on the holiday. This is in addition to a regular day's pay if the employee qualifies for the paid public holiday.

Termination of Employment

Termination of employment is when an employee stops working permanently for an employer. There are other words that mean the same as termination: “being let go”, “discharged”, “dismissed” or “fired”.

An employer can terminate an employee’s employment at any time, but must give written notice of termination, or termination pay instead of notice.

“Termination pay” is pay instead of written notice of termination when employment ends. This is sometimes called “pay-in-lieu of notice” or “lieu pay”. It is about one week of pay for every year worked to a maximum of eight weeks.

Not everyone is entitled to get written notice or termination pay. For example, an employee who has been employed for less than three months is not entitled to notice or termination pay. There are other situations where notice of termination is not required. For more information contact the Ministry of Labour office. ( at 416-326-7160 or 1-800-531-5551)

(A temporary layoff is usually for 13 weeks or less in any period of 20 consecutive weeks or 35 weeks in any period of 52 consecutive weeks and is not the same as termination. Notice is not required for a temporary layoff).

Payroll Records

Employees must receive a written wage statement each pay day. This must give full details about hours worked, earnings and all deductions. This is usually called a “pay stub”. The employee must be given this record to keep.

Employers must record the hours worked daily and weekly by the employee. Other records that must be kept include details of wages and overtime, vacation and public holiday pay and all deductions from an employee’s earnings.

How to File a Claim
(reprinted from the Ministry of Labour fact sheet)

A claim is a statement of how your employer broke the rules in the Employment Standards Act

Forms are available online at:
http://www.labour.gov.on.ca/english/es/pdf/claimform.pdf

The Ministry of Labour (MOL) suggests that you begin by talking to your employer or to your union representative if you have one.  Or you may want to send a registered letter to your employer explaining what the problem is and how it might be solved. Keep a copy of the letter and the mailing receipt.

If you cannot solve the problem yourself, contact the Employment Standards Program at the nearest Ministry of Labour office, and discuss your situation with an Employment Standards officer.

Employees can't be punished for claiming their rights

Employers cannot intimidate, fire, suspend, or otherwise punish an employee, or threaten any of these actions because the employee asks for or asks about their ESA rights. If this happens, contact the Ministry of Labour.

If an employee thinks that an employer is not following the ESA law, he or she can contact the Ministry of Labour for help. Employment Standards Officers can inspect workplaces and look into possible violations of the ESA.


The Ministry of Labour can also charge an employer with an offence, including a ticket. If convicted, employers may be fined or sent to jail.

May I file a claim under the Act?

Being covered by the Act does not automatically mean that you can file a claim under the Act. The following points explain the circumstances that prevent you from filing a claim with the ministry.

What do I need to file a claim?

You must fill out a Claim Form that is available from the Employment Standards Program at the nearest Ministry of Labour office. You will need information about your problem, your employment and your employer. If the information suggested is not available, it could make your claim harder to handle.

An employee needs to provide certain details about the employer and his or her employment when filing a claim. The employee will be asked to provide some or all of the following:
In completing the claim form, the employee must give details about:
In addition, the employee will be asked to give information about the employer, such as:

Time limit on filing a claim

You have 6 months after the money came due to file your claim. For example, you have $500 in wages due on the January 31, 2004 payday and you do not receive them. Your claim must be filed with the ministry no later than July 31, 2004. However unpaid vacation pay may be recovered if the claim is filed within 12 months of the date the vacation pay came due (rather than 6 months).

If your employer has repeatedly broken the same part of your contract, or the same rule in the Act, you have one year to file your claim if some of the money became due during the six months before filing the claim.

For example, your employer does not pay overtime and owes you $50 in overtime for every weekly pay starting with January 30, 2004 and ending on November 27, 2004 when you quit your job. Your claim for the overtime pay must be filed with the ministry no later than January 30, 2005.

Two-year time limit for filing a claim

The six-month/one-year limitations on recovery only apply to an employee's ability to seek recovery of unpaid wages, including vacation pay. In some cases, the employee has two years after a violation to file a claim with the Ministry. This two-year time limit applies where:
Extending Time Limits

The six-month/one-year and two-year time limits described above are set out in the legislation and are mandatory. However, it may be possible to make a claim that would otherwise be outside the applicable time limit if:
For example, an employer has stated that no overtime is payable under the ESA to an employee in certain circumstances and the employee relies upon the employer's statement and does not file a claim for overtime until after he or she finds out from another source that overtime is payable under the Act. In such a case, an employment standards officer may rule that the time limit that would otherwise not allow all or a portion of the claim should be extended because the delay in filing the claim was caused by the incorrect statement of the employer about the employee's ESA entitlements.

Note: If the time limit for filing your claim has passed, you may still be entitled to the money you are owed, but you cannot recover it through the Ministry of Labour. You may wish to consider taking legal action, such as small claims court, to collect the money owing you. In the case of bankruptcy, receivership or other insolvency, you should contact the trustee or receiver who is managing the affairs of the employer. You will then be asked to complete a form to claim the money that the employer owes you.

If an employee decides to start a court action for the same matter after filing a claim with the ministry, he or she should withdraw the claim within two weeks of the date of filing it to ensure that he or she will be allowed to start the court action.

Anonymous claims are not permitted but if you wish, you can request that MOL not use your name and/or address during the investigation.

After you file a claim

An Employment Standards officer will investigate your claim. This is usually done by contacting your employer, inspecting your employer's records and checking with other involved people.

After this, the Employment Standards officer decides if the Act was followed or not. The officer will let you and your employer know what the decision is.  If the officer decides the Act was not followed, he/she will tell you and your employer how the claim may be resolved under the Act.

If your employer does not resolve your claim, the officer may tell your employer in writing to resolve the claim. This is called "a written order" and it is a legal notice.

The maximum that an employer can be ordered to pay you is $10,000. There may be some exceptions such as pregnancy and parental leave.

You can apply for a review of a  decision. But you must apply not later than 30 days after the date that the officer's letter is mailed to you informing you of the decision not to issue an order.

If the officer wrote an order, your application for a review must be made not later than 30 days from the date of the order. Your employer can also apply for a review. The application may result in a hearing that will lead to a final decision.
 

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