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.


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 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?