Employment Standards Act and Common Law Notice

The Employment Standards Act (ESA) outlines the responsibilities of employers and the minimum rights of employees. The administrative staff of a midwifery practice are typically the only workers characterized as employees. These rights represent a “floor” or minimum requirements; an employer can exceed these rights, but cannot offer less. An attempt to “contract out” of a minimum requirement (such as a notice of termination) may render an employment contract void; proceed only with the advice of a lawyer. As a result, the AOM recommends that employment contracts be reviewed by a lawyer.

The Ministry of Labour publishes a Guide to the Employment Standards Act and tools to assist employers to comply with the ESA, including overtime calculators and a compliance workbook (as of December 2017, these guidelines do reflect recent changes to the ESA). As of December 2017, the employee rights and employer obligations can be summarized as below. However, there are a number of exceptions, such as overtime averaging, which are not outlined below (see the Ministry’s Guide for the exceptions).

• Employees or independent contractors: The ESA prohibits and provides penalties if an employer treats someone as though they are not an employee if they are more properly characterized as an employee.
• Post the Poster: Post the most up-to-date version of the government’s poster outlining employee rights.
• Hours of Work: Maximum eight hours a day for most workers, unless employer and employee agree otherwise in writing; and maximum 48 hours a week, unless employer and employee agree otherwise in writing and have approval from the Director of Employment Standards.
• Rest Periods:
  • Eleven consecutive hours off work each day, unless the employee is on call and is called in at a time when they would not otherwise be expected to work.
  • Eight hours off between shifts, unless total shifts are less than 13 hours or unless employer and employee agree otherwise in writing.
  • Twenty-four consecutive hours off weekly or 48 consecutive hours off biweekly, with some exceptions in unforeseen circumstances and to ensure “continued delivery of essential public services.”
  • No more than five hours of work without a 30-minute unpaid meal break (or two breaks totaling 30 minutes, if the employer and employee agree).
• Wage Protections:
  • No less than provincial minimum wage (which is increasing January 1, 2018 and 2019 and afterwards with inflation).
  • Overtime pay (1.5 times) or paid time off in lieu for time worked in excess of 44 hours per week (calculated weekly). There is an exception for managerial or supervisory employees.
• Vacation Time and Vacation Pay:
  • Most employees earn at least two weeks of vacation time every 12 months. They are also entitled to receive 4% of the total wages they earned as vacation pay. After five years of employment, employees are entitled to three weeks of vacation time a year, and the amount of vacation pay increases correspondingly to 6%.
  • Statutory holidays (i.e., public holidays): Most workers get statutory holidays off with statutory holiday pay; they can also agree in writing to work on that day and get statutory holiday pay plus a premium, or regular wages and a substitute day off later.
• Leaves of Absence:
  • All employees are entitled to three days of unpaid sick leave, three days of unpaid family responsibility leave (e.g. illness, injury, medical emergency, or urgent matter relating to certain family members), and two days of unpaid bereavement leave.
  • Job-protected unpaid time off for pregnancy leave (if hired at least 13 weeks before the due date) is the later of 17 weeks after the commencement of the pregnancy leave, or 12 weeks after the birth, stillbirth or miscarriage.
  • Job-protected unpaid time off for parental leave (for birth parents, adoptive parents, and those in “relationships of some permanence” with a child’s parent and who plan on treating the child as their own) is 63 weeks (or 61 if they also took pregnancy leave).
  • Employees who have been employed for at least 13 consecutive weeks are entitled to up to 10 days, and in addition up to 15 weeks of leave if the employee or a child of the employee experiences threatened or realized domestic or sexual violence. The first five days of leave are to be paid. This leave is to help the seek treatment or services (victim services/ legal services) or to relocate.
  • Other job-protected unpaid leave, including family medical leave, family caregiver leave, organ donor leave, critical illness leave, child death leave, crime-related child disappearance leave, and reservist leave, and emergency leave for declared emergencies.
  • Employees continue to earn seniority during leaves and the employer continues to make contributions to benefit plans (unless the employee informs the employer in writing that they will not be continuing to contribute).
  • Employer cannot penalize an employee in any way for taking or planning to take leaves and must reinstate the employee to their previous position or a comparable one if it no longer exist.
• Termination: If employed for at least three months, the employee is entitled to written notice of termination or termination pay in lieu (or a combination thereof).
  • Notice required under the ESA is generally one week per year of employment (to a maximum of eight weeks), though employees of one to three years are entitled to two weeks’ notice. However, unless the contract explicitly states that only the ESA minimum is required, the common law notice requirements will apply. Common law notice is typically much greater than ESA minimum notice and vary based on individual factors such as length of employment, age, and the nature of the position.
  • Exception: no termination notice or pay if there is valid “cause” for dismissal (this is a relatively high standard to meet; seek legal advice).
  • All terms and conditions of employment, including benefits continue during the notice period.
  • Severance: some employees are entitled to additional severance pay if employed by large employer (with a payroll of at least $2.5 million that severs the employment of more than 50 employees within a six-month period).
• Record Keeping:
  • Employers must keep records for three years, including: employee names, addresses, dates of employment, birth dates (if students under 18), hours worked each day, written agreements about working excess hours or average overtime pay, vacation time and pay records, wage statements, and information about leaves.
  • Provide employees with a Record of Employment whenever there is an interruption in their earnings (e.g., termination, leaves of absence).
  • For temporary help, workplaces must also keep records of daily and weekly hours of work of each temporary worker (i.e., placement agencies workers).
• The ESA prohibits employers from intimidating, dismissing, or penalizing workers from exercising or inquiring about their rights under the ESA.

Some exceptions to these rules can be made in exceptional circumstances, where agreed in writing, and/or approved by government.