We are writing to inform you that we are discontinuing this blog. We have chosen instead to focus our efforts on our Website, Twitter, and Facebook pages.
For more information about CALC please check out the following links:
CALC's Website: www.communitylegalcentre.ca
CALC's Twitter Page: www.twitter.com/CALCTweets
CALC's Facebook Page: www.facebook.com/CommunityLegalCentre
Thank you.
Thursday, October 20, 2011
Tuesday, August 2, 2011
Wage Theft Continues: Two Live-In Caregivers Owed Over $350,000 in Unpaid Wages and Wrongful Dismissal
The Worker's Action Centre has released a new video as part of its "Stop Wage Theft" Campaign in Ontario that was launched in May. The entire press release is available here.
Lilliane and Vivian worked as caregivers and faced unpaid wages, long hours and no overtime. They were forced to take court action to recover over $217,000 in unpaid wages and over $137,000 for wrongful dismissal. This is wage theft.
Recently, Lilliane and Vivian spoke out publicly against wage theft at and press conference. Their stories were featured in a front page Toronto Star article and in widespread media coverage. The Minister of Labour was forced to respond publicly.
Many caregivers give up their lives to care for other people's children and elderly or ill family members. And unfortunately, it's an all too common reality that they don't get paid for excess hours and other basic entitlements under the law. Through actions like Lilliane and Vivian's the Workers' Action Centre's campaign is building momentum. Click here to watch Lilliane and Vivian tell their stories about standing up against wage theft for all caregivers in the latest Stop Wage Theft Video.
Click here to read our past blog post about Lilliane and Vivian's story.
Go to the Workers' Action Centre.
Lilliane and Vivian worked as caregivers and faced unpaid wages, long hours and no overtime. They were forced to take court action to recover over $217,000 in unpaid wages and over $137,000 for wrongful dismissal. This is wage theft.
Recently, Lilliane and Vivian spoke out publicly against wage theft at and press conference. Their stories were featured in a front page Toronto Star article and in widespread media coverage. The Minister of Labour was forced to respond publicly.
Many caregivers give up their lives to care for other people's children and elderly or ill family members. And unfortunately, it's an all too common reality that they don't get paid for excess hours and other basic entitlements under the law. Through actions like Lilliane and Vivian's the Workers' Action Centre's campaign is building momentum. Click here to watch Lilliane and Vivian tell their stories about standing up against wage theft for all caregivers in the latest Stop Wage Theft Video.
Click here to read our past blog post about Lilliane and Vivian's story.
Go to the Workers' Action Centre.
Friday, July 15, 2011
Toronto mom with breast cancer wins EI case
A Toronto mother on maternity leave who was diagnosed with breast cancer but denied additional sickness benefits has won her appeal.
In what her lawyer says is a “precedent-setting case,” Natalya Rougas will receive the maximum 15 weeks of sickness benefits in addition to the 50 weeks of combined maternal/parental benefits she took after her son, Aris, was born in January 2009.
The sick benefit amounts to about $6,000, or $400 a week.
Read the full article at the Toronto Star.
Thursday, June 30, 2011
Provincially Regulated Employees - Part 6: Have You Been Dismissed?
In this final component of our six-part blog series outlining the workplace rights and obligations for both federal and provincial employees, we look at the Employment Standards Act protections and procedures available for employees who have been terminated.
Dismissal/Termination of Employment
As a provincially regulated employee, you are entitled to written notice prior to your dismissal . The notice period required under the ESA is generally determined by how long you were employed.
For example, in Ontario, any employee with 1 year or less of service is entitled to at least 1 week of notice or payment in lieu of notice. You are not entitled to any notice if you were terminated during probation (less than 3 months). At least 2 weeks of notice or payment in lieu of notice must be given to employees with 1-3 years of service; at least 3 weeks for service between 3-4 years and so on up to at least 8 weeks of notice or payment in lieu of notice if the employee has served 8 years or more. If you did not receive the appropriate notice period prior to your termination, you are entitled to a lump sum payment equal to the regular wages for a regular work week that you would have otherwise been entitled to during the written notice period. You also earn vacation pay on your termination pay, and your employer must continue to make whatever contributions would be required to maintain your benefits that you would have been entitled to if you had continued to work through the notice period.
An online calculator is available here if you are interested in calculating how much termination pay you should have received from your Employer. Your employer must pay you your termination pay on the later of either seven days after your employment is terminated or on your next regular pay date.
In Ontario, if you worked for a business which had a payroll of over $2.5 million and you worked there for at least five years, you are also entitled to severance pay. An online calculator is available here if you are interested in finding out how much Severance Pay you are owed.
Exemptions
Importantly, even if your profession is listed under the ESA exemptions in Part 2 of this series, you are still entitled to the minimum termination. Only construction workers on buildings, sewers, pipelines, and tunnels cannot claim severance pay, and only construction employees involved in road building or working on sewers and watermains are prohibited from claiming both severance pay and termination notice and pay.
If you are guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer, or if you refused an offer of “reasonable alternative employment” by your former employer, you are not entitled to notice, termination pay or severance pay.
Filing an Employment Standards Claim
If you believe that your employer is not following the ESA, you should discuss the matter with your employer. There is also a self-help kit available on the Ministry of Labour website which can help you identify and resolve any problems you might have regarding unpaid wages, public holiday pay, overtime, minimum wage, termination notice or pay in lieu and severance pay. If you are unable to resolve the matter with your employer, you may file an Employment Standards Claim. You must complete a claim form, which you can obtain from the Ministry of Labour’s website, by mail or in person at a Service Ontario Centre.
If you are filing a claim because you did not receive reasonable notice of termination or pay in lieu of notice, you must file the claim within 6 months of the date your wages were due. It is free to file a claim, and the maximum amount of money that your former employer can be ordered to pay is $10,000.
Concluding Note
For more information on your rights and obligations as an employee in a provincially regulated industry, please contact your nearest Employment Standards Office at 1-800-531-5551. You can also visit the Employment Standards Office website.
Dismissal/Termination of Employment
As a provincially regulated employee, you are entitled to written notice prior to your dismissal . The notice period required under the ESA is generally determined by how long you were employed.
For example, in Ontario, any employee with 1 year or less of service is entitled to at least 1 week of notice or payment in lieu of notice. You are not entitled to any notice if you were terminated during probation (less than 3 months). At least 2 weeks of notice or payment in lieu of notice must be given to employees with 1-3 years of service; at least 3 weeks for service between 3-4 years and so on up to at least 8 weeks of notice or payment in lieu of notice if the employee has served 8 years or more. If you did not receive the appropriate notice period prior to your termination, you are entitled to a lump sum payment equal to the regular wages for a regular work week that you would have otherwise been entitled to during the written notice period. You also earn vacation pay on your termination pay, and your employer must continue to make whatever contributions would be required to maintain your benefits that you would have been entitled to if you had continued to work through the notice period.
An online calculator is available here if you are interested in calculating how much termination pay you should have received from your Employer. Your employer must pay you your termination pay on the later of either seven days after your employment is terminated or on your next regular pay date.
In Ontario, if you worked for a business which had a payroll of over $2.5 million and you worked there for at least five years, you are also entitled to severance pay. An online calculator is available here if you are interested in finding out how much Severance Pay you are owed.
Exemptions
Importantly, even if your profession is listed under the ESA exemptions in Part 2 of this series, you are still entitled to the minimum termination. Only construction workers on buildings, sewers, pipelines, and tunnels cannot claim severance pay, and only construction employees involved in road building or working on sewers and watermains are prohibited from claiming both severance pay and termination notice and pay.
If you are guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer, or if you refused an offer of “reasonable alternative employment” by your former employer, you are not entitled to notice, termination pay or severance pay.
Filing an Employment Standards Claim
If you believe that your employer is not following the ESA, you should discuss the matter with your employer. There is also a self-help kit available on the Ministry of Labour website which can help you identify and resolve any problems you might have regarding unpaid wages, public holiday pay, overtime, minimum wage, termination notice or pay in lieu and severance pay. If you are unable to resolve the matter with your employer, you may file an Employment Standards Claim. You must complete a claim form, which you can obtain from the Ministry of Labour’s website, by mail or in person at a Service Ontario Centre.
If you are filing a claim because you did not receive reasonable notice of termination or pay in lieu of notice, you must file the claim within 6 months of the date your wages were due. It is free to file a claim, and the maximum amount of money that your former employer can be ordered to pay is $10,000.
Concluding Note
For more information on your rights and obligations as an employee in a provincially regulated industry, please contact your nearest Employment Standards Office at 1-800-531-5551. You can also visit the Employment Standards Office website.
Wednesday, June 29, 2011
Provincially Regulated Employees - Part 5: Your Basic Rights
Hours of Work
Under the Employment Standards Act, the maximum number of hours you can be required to work in a day is 8 hours, and the maximum per week is 48 hours. You and your employer can, however, agree in writing to work more than this. You must also receive at least 11 consecutive hours off work each day and if you are a shift worker, you must have at least 8 hours off work between shifts. This requirement doesn’t apply if the total time you would have worked on both shifts is less than 13 hours.
If you are a “homemaker” who has been hired by a third party to perform domestic services for a family in a private residence, you are not entitled to work (or be paid) for more than 12 hours per day.
Breaks
You are entitled to a 30 minute meal break if you work five hours in a row, but this break is unpaid, is not considered “hours of work” and cannot be counted towards overtime. Your employer is not required to give you a coffee or cigarette breaks.
Overtime
Overtime begins after you have worked 44 hours in a work week, and is calculated at one and half times your regular rate of pay.
Your employer can’t force you to work overtime, but you and your employer can agree to a longer week. Liquor servers, hotel, resort and restaurant employees must also work a minimum of 50 hours per week in order to qualify for overtime pay.
If you are a construction worker involved in “road building”, your overtime doesn’t begin until you have worked 50 hours, and if the road-building is on streets, parking lots or highways, you must work at least 55 hours to receive overtime pay. If you are a construction worker doing on-site road maintenance, you are also not entitled to overtime unless you have worked at least 55 hours per week.
Reporting Pay – the “Three Hour Rule”
When you are required to report to work for a shift that is three hours or longer, but you work fewer than three hours, you are entitled to the greater of a) three hours’ pay at Minimum Wage or b) your regular wage for the time worked. The “Three Hour Rule” does not apply if you are a student, or if you were scheduled to work fewer than three hours.
Statutory Holidays
Unless your occupation fell within the list of exemptions described in Part 4 of this blog series, you are entitled to take the 9 public holidays in Ontario off work and to be paid public holiday pay for each of these days. Your employer should calculate your public holiday pay, but for your own information, the amount is calculated by adding all the regular wages you earned in the four weeks before the work week with the public holiday, plus all the vacation pay owed to you with respect to those four work weeks, divided by 20. There is an online calculator available here.
If you agree in writing to work on the holiday, you should be paid either public holiday pay plus premium pay (one and one-half times your regular rate of pay) for the hours worked or your regular pay, and you can receive another day off (a “substitute” holiday) with holiday pay.
Sick Leave/Personal Emergency Leave
Unlike federal employees, who are entitled to sick leave under the Canada Labour Code, if you are a provincially regulated employee, you must rely on whatever sick policy your employer created and wrote into your employment contract. There are, however, “Personal Emergency Leave” provisions in the ESA, which, if there are 50 or more employees at your place of work, can provide you with up to 10 days off every calendar year if you are ill, or if a member of your family has a medical emergency. You may also take Personal Emergency Leave for pre-planned (elective) surgery, but it cannot be for unnecessary cosmetic surgery unrelated to an illness or injury. Furthermore, you may be eligible for Personal Emergency Leave because of an “urgent matter”. You must inform your employer before starting the leave that you will be taking the leave or, if you are unable to do this, you must inform your employer as soon as you can. You do not have to give notice in writing; oral notice is sufficient.
If a loved one becomes ill, you may apply for “Family Emergency Leave” which allows for all employees to apply for up to 8 weeks of time off to care for and to support a “family member” who is seriously ill. “Family member” includes your spouse, parent or child.
Maternity and Parental Leave
If you have worked for at least 13 weeks, you can take up to 17 weeks of unpaid leave with benefits, so long as you provide your employer with two weeks’ written notice of your intention to leave. New parents who have worked for 13 weeks may take 35 weeks unpaid “parental leave”, and they may take 37 weeks if the mother did not take her maternity leave. Two weeks’ written notice to your employer is also required for parental leave. You may take both maternity and parental leave, and the period of maternity and parental leave is included when you calculate your length of employment, service and seniority. Your employer is not allowed to “punish” you for taking pregnancy or parental leave, and your employer must offer you, upon your return, the same job, or a comparable job with equivalent wages and benefits.
Final instalment – Part 6: Have You Been Dismissed?
Under the Employment Standards Act, the maximum number of hours you can be required to work in a day is 8 hours, and the maximum per week is 48 hours. You and your employer can, however, agree in writing to work more than this. You must also receive at least 11 consecutive hours off work each day and if you are a shift worker, you must have at least 8 hours off work between shifts. This requirement doesn’t apply if the total time you would have worked on both shifts is less than 13 hours.
If you are a “homemaker” who has been hired by a third party to perform domestic services for a family in a private residence, you are not entitled to work (or be paid) for more than 12 hours per day.
Breaks
You are entitled to a 30 minute meal break if you work five hours in a row, but this break is unpaid, is not considered “hours of work” and cannot be counted towards overtime. Your employer is not required to give you a coffee or cigarette breaks.
Overtime
Overtime begins after you have worked 44 hours in a work week, and is calculated at one and half times your regular rate of pay.
Your employer can’t force you to work overtime, but you and your employer can agree to a longer week. Liquor servers, hotel, resort and restaurant employees must also work a minimum of 50 hours per week in order to qualify for overtime pay.
If you are a construction worker involved in “road building”, your overtime doesn’t begin until you have worked 50 hours, and if the road-building is on streets, parking lots or highways, you must work at least 55 hours to receive overtime pay. If you are a construction worker doing on-site road maintenance, you are also not entitled to overtime unless you have worked at least 55 hours per week.
Reporting Pay – the “Three Hour Rule”
When you are required to report to work for a shift that is three hours or longer, but you work fewer than three hours, you are entitled to the greater of a) three hours’ pay at Minimum Wage or b) your regular wage for the time worked. The “Three Hour Rule” does not apply if you are a student, or if you were scheduled to work fewer than three hours.
Statutory Holidays
Unless your occupation fell within the list of exemptions described in Part 4 of this blog series, you are entitled to take the 9 public holidays in Ontario off work and to be paid public holiday pay for each of these days. Your employer should calculate your public holiday pay, but for your own information, the amount is calculated by adding all the regular wages you earned in the four weeks before the work week with the public holiday, plus all the vacation pay owed to you with respect to those four work weeks, divided by 20. There is an online calculator available here.
If you agree in writing to work on the holiday, you should be paid either public holiday pay plus premium pay (one and one-half times your regular rate of pay) for the hours worked or your regular pay, and you can receive another day off (a “substitute” holiday) with holiday pay.
Sick Leave/Personal Emergency Leave
Unlike federal employees, who are entitled to sick leave under the Canada Labour Code, if you are a provincially regulated employee, you must rely on whatever sick policy your employer created and wrote into your employment contract. There are, however, “Personal Emergency Leave” provisions in the ESA, which, if there are 50 or more employees at your place of work, can provide you with up to 10 days off every calendar year if you are ill, or if a member of your family has a medical emergency. You may also take Personal Emergency Leave for pre-planned (elective) surgery, but it cannot be for unnecessary cosmetic surgery unrelated to an illness or injury. Furthermore, you may be eligible for Personal Emergency Leave because of an “urgent matter”. You must inform your employer before starting the leave that you will be taking the leave or, if you are unable to do this, you must inform your employer as soon as you can. You do not have to give notice in writing; oral notice is sufficient.
If a loved one becomes ill, you may apply for “Family Emergency Leave” which allows for all employees to apply for up to 8 weeks of time off to care for and to support a “family member” who is seriously ill. “Family member” includes your spouse, parent or child.
Maternity and Parental Leave
If you have worked for at least 13 weeks, you can take up to 17 weeks of unpaid leave with benefits, so long as you provide your employer with two weeks’ written notice of your intention to leave. New parents who have worked for 13 weeks may take 35 weeks unpaid “parental leave”, and they may take 37 weeks if the mother did not take her maternity leave. Two weeks’ written notice to your employer is also required for parental leave. You may take both maternity and parental leave, and the period of maternity and parental leave is included when you calculate your length of employment, service and seniority. Your employer is not allowed to “punish” you for taking pregnancy or parental leave, and your employer must offer you, upon your return, the same job, or a comparable job with equivalent wages and benefits.
Final instalment – Part 6: Have You Been Dismissed?
Friday, June 24, 2011
Provincially Regulated Employees - Part 4: What Legislation Applies to You?
If your job did not fall under any of the “federally regulated” categories described in the first instalment of this six-part blog series educating workers about workplace rights and obligations, you are probably a “provincially regulated” employee, and the legislation which applies to you is the Employment Standards Act (“ESA”). The ESA contains the minimum guarantees and protections for you as a worker in Ontario but it is important to note there are many occupations which are exempt from ESA protection or which have “special” applicable rules.
If your job falls in the list below, most provisions in Employment Standards Act do not apply to you, with the exception of minimum wage and the termination provisions, which are still applicable.
Managers and supervisors
Farm workers
Crown employees
Fire fighters, Paramedics
Taxi drivers
Hunting and Fishing guides
Salespersons on commission (who sell away from employer’s office, incl. real estate salespeople or brokers)
“Category 1 Professionals” and students in these professions (information technology, engineers, lawyers, accountants, surveyors, massage therapists, optometrists, pharmacists, physiotherapists, chiropractors, doctors, psychologists and architects)
Minimum Wage
The General Minimum Wage in Ontario is $10.25 per hour but if you serve alcohol at a license establishment, you are entitled only to $8.90 per hour. The Student Minimum Wage, which applies to students under the age of 18 who work 28 hours a work or less when school is in session, during a break or the summer, is $9.60 per hour.
Finally, if you are a “Homeworker” and you are paid to do work in your own home (i.e. word processing, telephone soliciting, sewing, manufacturing or who prepare food for resale), the Employment Standards Act guarantees you 110% of the General Minimum Wage or $11.28 per hour.
Next instalment – Part 5: Your Basic Rights
Thursday, June 23, 2011
Federally Regulated Employees - Part 3: Have You Been Dismissed?
In this final installment of the trilogy outlining your workplace rights and obligations as a federally regulated employee, we look at the Canada Labour Code provisions dealing with dismissal and termination. As a federally regulated employee, you can be terminated for just cause, without notice.
If, however, you are terminated without cause, your employer must provide you with two weeks written notice or two weeks’ pay in lieu of notice. Furthermore, if you have completed 1 year of continuous service and you were fired, you are also entitled to “Severance Pay” in the (greater of) two days of pay per year of service or five days’ pay. If you quit, you are not entitled to Severance Pay.
If you did not receive notice or your proper financial entitlement, and you meet the following four criteria, you have 90 days from the date of your dismissal to file a complaint to Labour Canada under Section 240 of the CLC for “unjust dismissal”.
· You were not a manager
· Your termination wasn’t due to a genuine redundancy or a discontinuance of your position.
· You worked continuously for more than 1 year.
· You were not a member of a union.
Potential remedies are broader than those available to provincial employees (who fall under the Employment Standards Act- see “Know Your Rights: Provincially Regulated Employees”) and include: lost wages and benefits since termination plus interest, reinstatement, legal costs, a letter of reference and/or “any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal”.
Concluding Note
For more information on your rights and obligations as an employee in a federally regulated industry, please contact the nearest Human Resources and Skills Development Canada Labour Office at 1-800-641-4049.
You can also visit the HRSDC website: http://www.hrsdc.gc.ca/eng/labour/index.shtml.
Next instalment: Provincially Regulated Employees - Part 4: What Legislation Applies to You?
If, however, you are terminated without cause, your employer must provide you with two weeks written notice or two weeks’ pay in lieu of notice. Furthermore, if you have completed 1 year of continuous service and you were fired, you are also entitled to “Severance Pay” in the (greater of) two days of pay per year of service or five days’ pay. If you quit, you are not entitled to Severance Pay.
If you did not receive notice or your proper financial entitlement, and you meet the following four criteria, you have 90 days from the date of your dismissal to file a complaint to Labour Canada under Section 240 of the CLC for “unjust dismissal”.
· You were not a manager
· Your termination wasn’t due to a genuine redundancy or a discontinuance of your position.
· You worked continuously for more than 1 year.
· You were not a member of a union.
Potential remedies are broader than those available to provincial employees (who fall under the Employment Standards Act- see “Know Your Rights: Provincially Regulated Employees”) and include: lost wages and benefits since termination plus interest, reinstatement, legal costs, a letter of reference and/or “any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal”.
Concluding Note
For more information on your rights and obligations as an employee in a federally regulated industry, please contact the nearest Human Resources and Skills Development Canada Labour Office at 1-800-641-4049.
You can also visit the HRSDC website: http://www.hrsdc.gc.ca/eng/labour/index.shtml.
Next instalment: Provincially Regulated Employees - Part 4: What Legislation Applies to You?
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