INDEX The commentary entries in the index are referenced to page numbers. The legislation entries in the index are referenced to the section numbers of the Employment Standards Act, 2000 preceded by the acronym ESA. For example, in the entry: Organ donor leave, date on which donor leave beginning, 72; ESA 49.2(8) 72 refers to page 72 of the commentary ESA 49.2(8) refers to section 49.2(8) of the Employment Standards Act, 2000 Where Ontario regulations made under the Employment Standards Act, 2000 are reproduced and indexed, the number and title of the regulation is followed by the page number in the Quick Reference. A Agreements to vary from certain employment standards See also Overtime. agreements in writing, 9. areas where parties permitted to vary statutory standards, 9. guidelines regarding agreements to vary, 9-11.. clear and specific, 10.. electronic agreements, 9.. excess hours agreement, 10.. future arrangements, 9-10.. invalid if coerced or forced to sign, 11.. parties required to know and understand contents, 10-11... informed consent, 10.. provisions to be included, 10.. signed by both parties, 10 Ambulance Services employment. Reg. 491/06 Ambulance Services, 441 Associated or related businesses. examples of, 25-26. test of, 25. treat as one employer in some cases, 24 Automobile Industry employment. Reg. 502/06 Automobile Manufacturing, Automobile Parts Manufacturing, Automobile Parts Warehousing 453
and Automobile Marshalling, 443 B Bill 148, Fair Workplaces, Better Jobs Act. followed from Final Report of the Changing Workplaces Review, 158. enforcement provisions amended, 159.. monetary penalties, warrants, liens, 159. significant changes, 158.. increased vacation entitlements, 159.. minimum wage increases, 159.. personal emergency leave, 159.. temporary help agencies changes, 159 Benefit plans. differentiation permissible for certain exceptions, 9. differentiation prohibited based on age, gender or marital status, 22; ESA 44. Reg. 286/01 Benefit Plans, 383 Building services providers. building services defined, 121-122; ESA 1(1). building services provider defined, 122; ESA 1(1). employment not deemed to be terminated or severed where employment continued, 122; ESA 10(2). information to be furnished to new provider of building services, 124; ESA 77.. specific information respecting each employee, 124. new building services provider, 122.. compliance with termination and severance provisions, 122; ESA 75(2)... compliance not required where employee not performed duties, 123... compliance not required where employee refuses offer, 123... compliance not required where employee retained, 123... compliance required where employment not continued, 123... prescribed employees not entitled to termination or severance pay, 123 454
. Reg. 287/01 Building Services Providers, 392. replaced building services provider, 123.. accrued vacation pay to be paid where ceasing operations, 123; ESA 76(1) C Child death leave and crime-related disappearance leave, See also Leaves of Absence. child defined, 78; ESA 49.6(1). child has died or has disappeared as result of a crime, 9.. crime defined, 79; ESA 49.6(1). employer may request evidence reasonable in the circumstances, 79; ESA 49.5(10), 49.6(14). length of leave, 79; ESA 49.5(2), 49.6(2). notice in writing, 78; ESA 49.5(7), 49.6(11).. written plan, 78.. rules if child found, 79; ESA 49.6(6). qualification to take leave, 78. when leave may be taken, 70-71 Compensation order, 135-136, See also Enforcement of ESA, 2000 Compliance orders, 138, See also Enforcement of ESA, 2000 Concurrent proceedings. civil proceeding not allowed where complaint filed, 147; ESA 97.. exception where complaint withdrawn, 148; ESA 97(4). complaint not permitted where civil proceedings, 147; ESA 98(1). cooling off period, 148 Constructive dismissal, 12, See also Termination of employment Critical illness leave, See also Leaves of Absence. care or support of critically ill minor child leave of 37 weeks, 74; ESA 49.4(2).. defined, 74. care or support of critically ill adult family member leave of 17 weeks, 74.. defined, 74; ESA 41.4(5). certificate from health practitioner, 75; ESA 49.4(20). critically ill defined, 74; ESA 49.4(1) 455
. Employment Insurance benefits, 76. end of leave, 75. Extension of leave, 76. leaves need not be taken consecutively, 74. leaves need not be taken in complete weeks, 74. more than one child or adult, 73. no limit on number of leaves, 76. notice in writing, 75; ESA 49.4(17).. written plan, 75. qualification to take leave, 75 D Declared emergency leave, See also Emergency leave, personal. emergency declared under Emergency Management and Civil Protection Act (EMC- PA), 67; ESA 50.1(1). emergency orders, 67; ESA 50.1(4). employer, small or large, 67. evidence reasonable in circumstances, 67; ESA 50.1(4). fourteen-days unless terminated or extended, 67. notification in advance, 67. part-time or full-time employees, 68. private or public companies, 68. right to a leave, 67.. eligibility criteria, 67. unpaid leave, 67 Definitions, ESA 1(1) Directors, liability for wages. liability, ESA 81. maximum liability, 145; ESA 81(7). types of payments, 145.. holiday pay, 145; ESA 81(5).. overtime, 145; ESA 81(6).. vacation pay, 145; ESA 81(4).. wages, 145; ESA 81(3)... insolvent company, 144... order by OLRB, 145... order by employment standards officer, 145 Domestic or sexual violence leave. effective January 1, 2018 (Bill 148), 76. entitlement after 13 weeks to 10 days and 15 weeks, 76; ESA 49.7(2), (4) 456
. first 5 days paid leave, 77; ESA 49.7(5). purposes, 76-77. request reasonable evidence from employee, 77; ESA 49.7(15) Domestic or sexual violence leave. effective January 1, 2018 (Bill 148), 76. entitlement after 13 weeks to 10 days and 15 weeks, 76; ESA 49.7(2), (4). first 5 days paid leave, 77; ESA 49.7(5). purposes, 76-77. request reasonable evidence from employee, 77; ESA 49.7(15) Dress codes. deduction by employer from wages, 131. determined by employer, 130. violation of collective agreement, 130. violation of human rights, 130-131 E Emergency leave, personal, See also Declared emergency leave, and Leaves of absence. 10-day entitlement, 57. automobile essential activities employees entitled to 7 days, 66. cases of death, illness, injury and certain other medical emergencies, 57.. evidence of personal emergency not required, 60.. illness including all surgeries, 57.. urgent matter, 57... examples, 58-59... test, 59. dependent, 58. designation of absence as personal emergency leave, 66. employee to decide whether to designate absence as emergency leave, 66.. unauthorized if not designated, 66. employers regularly employing at least 50 employees, 64-65.. Quirk Principle, 64.. Sea Change Principle, 65. employment contract or collective agreement prevailing if better deal, 61-63.. contractual provisions taken in their entirety, 61 457
.. criteria for determining whether contract providing better deal for employee, 61-63... eligible relationships, 62... negative consequences, 62... number of days of leave, 62... other criteria, 62-63... paid or unpaid leave, 62... reinstatement right, 62... qualifying events, 61.. reinstatement entitlement, 63.. return to work, entitlement to, 63.. where terms representing greater right or benefit, 63. evidence reasonable in circumstances, 59-60.. evidence with respect to medical matters, 59-60.. evidence with respect to non-medical matters, 60.. factors and principles applying, 59-60.. medical certificates (detailed) not to be required, 60. human rights obligations being separate and distinct, 63.. duty to accommodate persons with handicaps, 63. illness, 58. individuals in respect of whom emergency leave able to be taken, 59.. dependent relative, 58. notification in advance, 63. professional employees, where leave not available for, 65. proof of eligibility for emergency leave, 59-60.. detailed medical certificates not to be requested, 60.. evidence reasonable in the circumstances, 59-60... evidence in respect to medical matters, 59-60... evidence in respect of non-medical matters, 60.. relative of employee, 58. relative, 58. ten-day entitlement, 57.. counted in full days, 60.. employment contract or collective agreement prevailing, 61... criteria in determining whether contract/agreement providing better deal, 61-63 458
... where terms representing greater right or benefit, 61.. pro-rating not permitted, 60.. unpaid, 57.. unused leave days not carried over, 61. urgent matter, 58.. examples, 58-59.. not, 59.. test, 58-59 Emergency Management and Civil Protection Act (EMC- PA). emergency orders, 67. employer, small or large, 67. evidence reasonable in circumstances, 67. fourteen-days unless terminated or extended, 67. notification in advance, 67. part-time or full-time employees, 68. private or public companies, 68. right to leave, 67.. eligibility criteria, 67. unpaid leave, 67 Employee discounts, not covered by ESA, 2000, 130 Enforcement of ESA, 2000. collection powers of Director, ESA 125-125.3.. authorization of collectors, ESA 127.. powers of collectors, ESA 128.. settlement by collector, ESA 129. complaint procedure, 131-134.. employee complaint, 131-133... approved form, 131-132; ESA 96(2)... employee represented by union, 131; ESA 99.. filing a claim, 131-132.. employment standards officers authorized to attempt settlement of claims, 132-133.. new claim form and guide, 131-132.. new process for employment standards claim process, 131-132.. purpose is faster resolution of claims, 131.. two-year time limit, 145. compliance orders, 138; ESA 108 459
.. issued in conjunction with other monetary orders, 138.. non-monetary violations, remedying, 138.. payment of wages or compensation not permitted, 138.. specific orders, 138. Director.. powers of, ESA 88, 88.1, 88.2. employer recognition, 144. employment standards officer, investigation by, 132-134.. absence of a complaint, 133-134.. fact-finding meeting, attendance by employer and employee at, 132-133; ESA 102... failure to attend meetings, 133; ESA 102(10).. powers of investigation and inspection, 133-134; ESA 91... policies, officers to follow, 133; ESA 89... without warrant, 133.. self-audit notice to employer, ESA 91.1.. warrants, ESA 92. limitations on recovery See Limitations on recovery. notice of contravention, 133-141; ESA 113.. deemed contravention if employer failing to apply for review of notice, 139; ESA 113(5).. dispute of notice, 139-140.. information describing nature of contravention, 139; ESA 113(2).. penalties, 140-141; ESA 113(1.1), (6).. publication of, ESA 113(6.2)... payment of penalties, 141.. review of notice of contravention, application for, 140; ESA 122... hearing by OLRB, 140; ESA 123(2)... onus on Director of Employment Standards to establish contravention, 140; ESA 122(4).. service of notice, 139, ESA 113(3).. unionized employee, not used where, 141. offences and penalties See Offences and penalties. order for compensation or reinstatement, 134-137; ESA 104 460
.. administration fee, 134-135.. amount of compensation to be set out, 134-135.. damages recoverable, types of, 135-136... benefit plan entitlements, 136... direct earning loss, 135... emotional pain and suffering, 136... expenses incurred in seeking new employment, 135-136... loss of employee s reasonable expectation of continued employment, 136... pre-reinstatement compensation, 135... reasonable foreseeable damages, 136... severance pay, 136... time required to find new job and termination notice or pay, 135.. obligation to mitigate losses, 136.. security, warrants and liens, 143-144; ESA 125.1, 125.2, 125.3.. no limit on amount of order, 137. order to pay wages, 134; ESA 103(1).. administration fee, 134; ESA 103(2).. appeal within 30 days, 134. penalties for notice of contravention, 138-141; Reg. 289/01 Enforcement, 417.. payment of penalty, 138-137. reinstatement considerations, 137.. reinstatement order, 137. review application See Review application. third party demands, 137.. Director can demand money held by third party, 137. ticketing See Ticketing Employment standards officer See Enforcement of ESA, 2000 Equal pay for equal work. differentiating between sexes permitted on certain basis, 21; ESA 42(2). reducing wages of employee to comply not permitted, 20-21; ESA 42(3). same rate of pay for males and females, 19-20; ESA 42(1) 461
Exemptions, Special Rules and Minimum Wage. Reg. 285/01 Exemptions, Special Rules and Establishment of Minimum Wage, 395 F Family caregiver leave See also Leaves of Absence. care or support of family member with serious medical condition, 72, 73; ESA 49.3(2).. list of included family members, 72; ESA 49.3(5). certificate from health practitioner, 73; ESA 49.3(2), (8). eight weeks leave need not be taken consecutively, 72. eight weeks leave need not be taken in complete weeks, 72. no limit on number of leaves, 73. notice in writing, 74; ESA 49.3(6) Family medical leave. Compassionate Care Benefits Attestation form, 69. Employment Standards Act changes, 68-69. entitled to 28 weeks unpaid leave, 68; ESA 49.1(2). family members, specified, 68-69.. category, expanded, 68-69. federal compassionate care leave benefits, 69. full-time and part-time employees, 69. further job-protected leave, 70; ESA 49.1(11). leave taken in periods of entire weeks, 70; ESA 49.1(7). leave without pay, 28 weeks, 68. medical certificate, 69; ESA 49.1(2), (10). no qualifying period, 69. notification in writing, 70; ESA 49.1(8). Reg. 476/06 Family Medical Leave Prescribed Individuals, 420. risk of dying, 68; ESA 49.1(2). seniority continuing to be earned, 70. serious medical condition, 69. sharing of leave of absence, 69. where family member dying, 68 H Hours of work See also Overtime 462
. emergency situations exemption, 42. employee requests for schedule changes and location.. due process by employer in response, 34.. effective January 1, 2019, 34.. in writing by employee, 34. excess daily hours, 29-30.. consent of employee, 29-30.. copy of rights and employer s obligations under ESA, 30.. exact number of hours specified, 30.. excess hours of work agreement, 30.. revocation of agreement, 30... reasonable notice by employer, 30.. single-occasion agreement, 30. excess weekly hours, 30-32.. above and beyond 48 hours per week if Director approving, 30.. consent of employee, 30.. copy of rights and employer s obligations under ESA, 30.. excess weekly hours of work agreement in writing, 30, 32.. overtime wording to be avoided, 32.. pending approval, number of hours able to work, 30.. revocation of agreement upon notice, 31... reasonable notice by employer, 31.. single-occasion agreements, 31.. specific number of hours to be set out, 32.. unilateral withdrawal not permitted where approval by Director, 31. exemption for information technology professional, 43.. information technology professional defined, 43. exemption for supervisory or managerial employees, 40-42. exemption in certain emergency situations, 42.. where necessary to avoid serious interference with working of operations, 42... emergency situation, 42. general rule, 29 463
. gold permit preventing unilateral withdrawal by employee, 31. information technology professional exempted, 43. limit on 8 hours per day or 48 hours per week, ESA 17. limit of sixty hours per week where approved agreements, 30. limit of ten hours per day where approved agreements, 30. overtime wording to be avoided, 32. permits valid for three years, 32.. Director considering employer s compliance history and health and safety, 32. scheduling and three-hour rule changes.. effective January 1, 2019, 32-34.. payment for at least three hours, 32-34... on-call employee not called to work, 34... shift cancelled with less than 48 hours notice, 33... shift shortened when employee present, 32-33.. regular rate calculation, 33. supervisory or managerial employees exempted, 40-42. unilateral withdrawal by employee not permitted where gold permit, 31 Human Rights Code. prohibition against making work on Sunday as condition of employment, 29 I Information technology professional. defined, 43. hours of work exemption, 43 Interns 46 See also Trainees/ Students/Interns L Lay-offs. absences from work taken into account, 97-98.. excluded week, 97. not regular work week, 97; ESA 56(3.3).. deemed lay-off, 97.. excluded week not counting, 97; ESA 56(3.4). regular work week, 97; ESA 56(3.1).. deemed lay-off, 97 464
.. excluded week counting for 20 or 52 week periods, 97-98. temporary lay-off, 96-98; ESA 56(2).. constructive dismissal, 98.. definition, 97.. termination pay purposes, 97-98.. severance pay purposes, 98 Leaves of absence, 53-86, See also Child death leave and crime-related child disappearance leave, Critical illness leave, Declared emergency leave, Domestic or sexual violence leave, Emergency leave, personal, Family caregiver leave, Family medical leave, Parental leave, Pregnancy leave, Reservist Leave and Organ donor leave. attendance management programs and, 85-86.. employees not penalized for taking leave of absence, 85. benefit plans, employer continuing to pay share of premiums for, 80; ESA 51.. unless employee electing not to continue participation, 80. bonus entitlements and, 84-85.. perfect attendance and, 84. greater right or benefit, leave provisions not giving, 82. paid plans, 53. part-time position, no obligation to provide, 81. public holiday during leave, 84. reinstatement to previous position or comparable position, entitled to, 80; ESA 53.. factors in determining whether position comparable, 80-81.. position modified, where, 80.. unless employment ended for reasons solely unrelated to leave, 81.. wage rate with salary increases, entitled to be paid, 81. service and seniority continuing to accrue, 79-80; ESA 52.. probationary employees, exception for, 80. unpaid, job-protected leaves, 53. vacation entitlements, interaction with, 81-84; ESA 51.1 465
.. active and non-active employment included in determining entitlements, 82.. leave included in calculating length of employment and seniority, 82-83.. probationary period, 82.. vacation pay and vacation time accruing while on leave, 82-84.. accrual of paid vacation entitlements on monthly basis being greater benefit, 82-84... deferral of vacation until leave expiring, 84... greater contractual right prevailing, 82... taking of vacation immediately after leave expiring, 84... unpaid leave does not accrue vacation pay on no wages, 82... vacation entitlements based on length of service accrue during unpaid leave, 83... vacation pay in lieu of taking vacation, electing, 84... vacation time does accrue even if no vacation pay, 82 Limitations on recovery. monetary limits, 147.. compensation order, 147.. maximum amount in respect of wages, 147. time limits, 145-147; ESA 114.. complaint, filing of, 145-146... outside time limits, 146... situations other than recovery of wages, 146... two-year time limit, 145.. fraudulent concealment doctrine, 146... employer responsible for delay, 146 M Mass termination See also Termination of employment. exemption, 106. fifty or more employees, 105. notice of termination, minimum, 105. prescribed information to be provided to Director, 106 Meal breaks and rest periods. emergency situations exemptions, 42; ESA 19. meal break of 30 minutes after five hours of work, 38; ESA 20(1) 466
.. agreement by employer and employee to divide up 30- minute break, 38.. divided portions of meal break totaling 30 minutes, 38.. employer not required to pay employee for meal break, 39; ESA 21.. employer not required to provide coffee breaks, 39.. meal breaks in designated place, 38.. on call while on meal break, 38.. uninterrupted 30-minute total meal break, 38-39. rest periods in each day and between shifts, 39.. period of 8 hours between shifts, 39; ESA 18(3).. period of 11 hours free from work, 39; ESA 18(1). rest period of 24 hours between each work week, 40; ESA 18(4) Mediation See Review application and Settlements Mineral exploration and Mining. Reg. 159/05 Terms and Conditions of Employment in Defined Industries Mineral Exploration and Mining, 447 Minimum wage See also Wages. call-in pay, 49. minimum wage rates, 47-48; ESA 23.1.. annual adjustment, ESA 23.1(4). room and board allowances, 48-49; ESA 23(2). wages defined, 47; ESA 1(1) O Offences and penalties. additional order, 153; ESA 133. general offences, 152; ESA 132.. offence to contravene ESA, 2000 or fail to comply, 152.. Reg. 289/01 Enforcement, 417. penalties applying upon conviction, 152.. maximum fine and/or jail term where employer convicted, 152. prove case beyond a reasonable doubt, 152. specific offences, 153 467
.. false or misleading information, providing, 153; ESA 131(2).. false records, making, keeping or producing, 153; ESA 131(1) On-call employees See also Work deemed to be performed. on-call employees waiting off-site not entitled to be paid, 51. on-call employees waiting on-site entitled to be paid, 51 Organ donor leave See also Leaves of absence. date on which organ donor leave beginning, 72; ESA 49.2(8). duration of organ donor leave, 71-72; ESA 49.2(5).. job-protected unpaid leave of 13 weeks, 71. entitlement to take organ donor leave, 71; ESA 49.2(3). medical certificate stating extended leave of additional 13 weeks, 71-72; ESA 49.2(6). medical certificate stating has undergone or will undergo surgery, if requested, 71; ESA 49.2(3). notice of two weeks by employee, 71; ESA 49.2(12) Overtime. agreement to average hours of work for calculating overtime pay, 36; ESA 22(2)-(6).. averaging periods of up to two weeks pending Director s approval, 36; ESA 22(2).. Director s approval required for overtime averaging, 36; ESA 22.1... factors considered by Director, 6-37.. expiry date, 37.. revocation, 37; ESA 22.1(14).. statement notifying employee that agreement may affect entitlement, 37. average work week exceeding 44 hours, 35; ESA 22(1). dual role employees entitled to overtime pay or paid time off, 43; ESA 22(9). one and one-half times regular pay after 44 hours, 35; ESA 22(1). paid time off in lieu of being paid overtime, 37-38; ESA 22.1(7) P Parental leave See also Leaves of absence 468
. commencement of parental leave immediately after pregnancy leave ending, 56. parent defined, 55; ESA 45.. adoptive, 55.. birth, 55.. other parents, 56.. spousal-like relationship with a parent, 55-56. resignation notice requirement, 56. four weeks written notice, 56. unpaid parental leave of 61 weeks, if employee also took pregnancy leave, 55. unpaid parental leave of 63 weeks, if employee did not take pregnancy leave, 55 Payroll administration. direct deposit account as condition of hire, 12. methods of paying wages, 12.. by cash, 12.. by cheque, 12.. by direct deposit, 12. regular, recurring pay period and pay day, 11 Penalties See Offences and penalties Personal emergency leave See Emergency leave, personal Posting of information. employer required to post certain prescribed information, 22-23; ESA 2. employer must provide to new employees, 23. translated versions, 23. updated versions (May 2015), 23 Pregnancy leave See also Family medical leave, and Leaves of absence. date on which pregnancy leave beginning, 54; ESA 46(2).. where child overdue, 54. entitlement to take pregnancy leave, 54; ESA 46(1).. job-protected pregnancy leave of 17 weeks, 54. employment for at least 13 weeks before, 54; ESA 46(1). medical certificate stating due date, if requested, 54. notice of two weeks by employee, 54; ESA 46(4) Public holidays and public holiday pay. calculation of public holiday pay, 89. elect-to-work employees exempt from general rules, 87. lay-off, interaction with, 89-90 469
. leaves of absence, interaction with, 89-90; ESA 29(2.1).. leave of absence, public holiday falling during, 89-90. list of public holidays, 86. non-working day, public holiday falling on, 88; ESA 29.. public holiday pay, 88.. substitute day off, 88... written record prior to, 88. one and one-half times regular wages, 87; ESA 24(2). qualifying conditions, 86-87. regular working day, public holiday falling on, 87-88; ESA 26.. employee electing to work, where, 87; ESA 27... regular public holiday pay plus premium pay, 88; ESA 27(2).... hours worked not considered in calculating overtime pay, 88... substitute day off with holiday pay, 87; ESA 27(2.1)... written record prior to, 88.. given day off work and receiving public holiday pay, 87. special public holiday rules: retail business establishments and certain other operations, 27; ESA 28. vacation of employee, public holiday falling during, 89.. public holiday pay without substitute day off, 89.. substitute day off with public holiday pay, 89. work refusal, 27.. retail workers, 27 Public Transit Services. Reg. 390/05 Terms and Conditions of Employment in Defined Industries Public Transit Services, 449. Bill 148 changes effective January 2018 and January 2019, 17.. dates and times worked, 17.. dates and times worked at rates of pay, 17-18. Bill 148 changes effective January 2019, 17-18.. cancellations of work or on call, 18.. dates and times to work and on call, 17 470
Q Quirk Principle, 64, See also Emergency leave, personal R Record keeping. Bill 148 changes effective January 2018 and January 2019, 17. retention of information pertaining to employees for three years, 18-19; ESA 15(5).. information to be retained, 16.. records and documents readily available for inspection, 19. salaried employees, hours of work information not required for, 18.. record of excess hours to be kept, 18; ESA 15(8). student employees, 17. third party to retain documents relating to leaves of absence, 19; ESA 15(7). types of information to be recorded, 17-18; ESA 15(1). vacation records, 17, 94-96; ESA 15.1.. information to be recorded, 94-95.. vacation pay, 17.. vacation time, 94-95.. when to be prepared, 95-96 Reprisals. enforcement by employment standards officer, 157.. authority of employment standards officer if employee subject of reprisal, 157.. compensation order, 157.. no maximum recovery amount, 157... payment of amount to Director with administration fee, 157. four-step test to determine, 154-155. generally, 153. onus on employer to prove actions not reprisal, 154; ESA 74(2).. exception to reverse onus where employer applying for review, 154. penalties for failure to comply with court order, additional, 158. prohibition against intimidating, dismissing or penalizing employee, 153; ESA 74(1). prohibition against penalizing employee due to court 471
order or garnishment, 154; ESA 74(1). remedies and penalties upon conviction, 157. mandatory direction to court, 157.. order employer to take specific action or refrain from taking specific action, 157.. order to hire or compensate applicant if lie detector used, 157.. order to pay wages or reinstatement or compensation order, 157 Reservist leave. duration of leave depending upon deployment, 70. eligibility, 70; ESA 50.2(1). entitlement to unpaid leave of indefinite length, 70; ESA 50.2(4). job-protected leave for military reservists, 70.. domestic operations or national disasters, 70. pension or benefit plan contributions not required to be continued during leave, 71. reasonable notice in writing, 71; ESA 50.2(5). reinstatement able to be postponed, 71. reinstatement to same or comparable position, 71. reservist defined, 70; ESA 1(1). seniority and service credits continuing to accumulate, 71 Rest periods, 38-39, See also Meal breaks and rest periods Retail business establishments. definition, 27; ESA 72(1). establishments not covered by special rules, 27; ESA 72(2). special rules, 27-29.. public holidays, right to refuse work on, 27; ESA 73(1).. Sunday work, right to refuse, 28-29... after September 4, 2001, 28-29.... where agreement to work on Sunday, 28.... where no agreement to work on Sunday, 28... before September 4, 2001, 28... Human Rights Code, 29.... prohibition against making working on 472
Sunday as condition of employment, 29.... where adversely affecting employees of certain religious backgrounds, 29 Review application. application form, 150.. facts and reasons for application to be set out, 150.. reasons why extension of time warranted, 151. application to OLRB, 150-141; ESA 116.. quasi-judicial administrative tribunal, 150. application within 30 days after order or letter served, 150; ESA 116(4).. extension of time for applying, 150; ESA 116(5). compensation order, where, 150.. payment of amount ordered to Director first, 150. decision being final and binding on parties, 152; ESA 119(13). hearing before OLRB for purposes of review, 151; ESA 116(6).. regional center closest to workplace, 151. judicial review of OLRB s decision, 152; ESA 119(14). labour relations officer, role of, 151.. mediation process, 151. mediation of settlement prior to hearing, 151.. distribution of monies held in trust upon settlement being reached, 151. order to pay wages, where, 150. parties to, ESA 116(7). powers of OLRB, 150; ESA 119.. notice of contravention rescinded, affirmed or amended, 151.. substituting its own decision for that of officer, 151-152. review of certain decisions of employment standards officers, 150.. compensation order, 150.. compliance order, 150.. notice of contravention, 150.. order to pay wages, 150.. refusal to make an order, 150.. reinstatement order, 150 473
S Sale of business. continuity of employment, 23. employee deemed not to have employment terminated, 23; ESA 9. length of employment with seller included in calculating vacation entitlement, 23. transfer of vacation pay liability, 24 Salesperson Commissioned. defined, 44-45. exempt from hours of work, overtime, public holidays, vacation provisions, 44-45. route salesperson not exempt, 45 Sea Change Principle, 65, See also Emergency leave Settlements. administrative surcharge pro rated where settlement concerning order to pay wages, 149; ESA 112(6).. example of pro rating, 149.. incentive to settle, 149. notification to employment standards officer, 148; ESA 112.. disclosure of all terms of settlement, 148.. joint statement of parties, 148. settlement agreement respecting contravention, 149.. complaint deemed withdrawn, 149.. order respecting contravention void, 149.. restrictions on settlements, 149; ESA 112(7)... future contraventions, not permitting, 149... settlement void where OLRB finding fraud or coercion, 149; ESA 112(8) Severance of employment See also Termination of employment. defined, ESA 63(1). payments on severance, 108-109. recall rights, ESA 67. severance occurring in certain circumstances, 108-109. severance pay, 108-118.. calculation, 112-113; ESA 65... actuarially unreduced pension benefits standards, 113... employees with regular work week, 112 474
... employees without regular work week, 112-113... 26-week maximum, 113.... greater right or benefit exemption, 113.. circumstances where employee not entitled, 110-111.. deductions from ESA, 65(8).. definition of severance, 108; ESA 63(1).. exemptions, 110-111... alternative employment, refusal of, 111... employees guilty of willful misconduct or neglect of duty, 111, 115-118.... purposeful and deliberate, 111.... that was not trivial, 111... frustration of contract unless, 110... on-site maintenance, 111... permanent discontinuance of business, 110... retirement and unreduced pension, 111.. instalment payments, 112; ESA 66(1).. qualifications for entitlement, 109; ESA 64(1).. timing of payments, 121 Students, 46-47, See also Trainees/Students/Interns Supervisory or managerial employees. actual functions of person to be assessed, 41. dual role employees, 43-44. exclusion from hours of work and overtime provisions, 40. managerial functions, performing, 40. supervision of employees rather than machines, 41. supervisory or managerial definition, 40-41.. including employees performing non-supervisory or non-managerial tasks, 40... irregular and exceptional basis not defined, 40-41... irregular implying that unscheduled or sporadic, 40-41... non-supervisory or nonmanagerial duties performed outside of course of duties, 41 T Temporary help agencies, 124-130 475
. agency, role and responsibility, 127-129; ESA 74.4, 74.5, 74.8. client business, role and responsibility, 126-127; ESA 74.4.2, 74.12. enforcement, ESA 74.13-74.18. public holiday pay, 128-130; ESA 74.10. notice requirements, 125. records requirements, 125; ESA 74.4. reprisals against employees, 126; ESA 74.12. temporary lay-off, 130. termination, 129; ESA 74.10.1. Reg. 398/09 Terms and Conditions of Employment in Defined Industries Temporary Help Agency Industry, 450.. mass termination does not apply, 129.. notice of (or pay in lieu of), 129; ESA 74.10.1(2) Temporary layoffs See Lay-offs Termination of employment See also Severance of employment. bonus during termination period, 102. constructive dismissal.. defined, 118-120. defined, 99; ESA 56. mass termination, 105-106.. exemption, 106-108.. fifty or more employees, 105; ESA 58(1).. notice of termination, minimum, 105.. prescribed information to be provided to Director, 106. notice of termination requirements, 99; ESA 54, 57.. combination of notice and pay in lieu of notice, 100.. employees not entitled to notice, 106-108... alternative employment, refusal of, 107... construction employee, 107-108... definite term or specific task, hired for, 106... during strike or lock-out, 107... employee guilty of willful misconduct or neglect of duty, 107... frustration of contract, 107... retirement age, 107 476
... temporary lay-off, 107.. length of notice, minimum, 100-101.. mass termination, 105-106.. maximum notice/pay, 113.. notice in writing, 99... effective date, 100.. pay in lieu of notice, ESA 61.. reason for termination, 99.. where required notice not given, 100-101. payment of wages, 101-102. quit versus fired, 120. Reg. 288/01 Termination and Severance of Employment, 421. statement of wages upon termination, 14. termination defined, 99. two different periods of employment, 103. statutory notice period, 101.. benefit plans to be maintained, 101.. wage rate not to be reduced, 101. termination pay, 101.. exemptions, 106-108... alternative employment, refusal of, 107... construction employee, 107.. definite term or specific task, hired for, 106... during strike or lock-out, 107... employee guilty of willful misconduct or neglect of duty, 107, 108, 115-118... frustration of contract, 107... retirement age, 107... temporary lay-off, 106, 107; ESA 56(2).. lump sum payment, 101.. regular wages during written notice period, 101; ESA 60(1). timing of payments, 121 Ticketing, See also Enforcement of ESA, 2000. employment standards officers as provincial offences officers, 141. fines, 141-142.. set fine of $295, 141.. victim fine surcharge, 142. mandatory employer self-audit, 143. options for ticketed employer, 142-143. proactive inspections or after investigation, 142 477
. ticketable offences, 142.. categories of offences, 142.. Schedules to Regulation 950, 142 Tips, protection of. employers cannot withold tips from employees, 13; ESA 14.2. pooling of tips/gratuities, ESA 14.4. tips, defined, 13, 47; ESA 1(1) Trainees/students/interns. exemptions from the Act.. secondary school, college and university programs, 46-47.. students in professional training, 47.. true interns, 46 Training time. mandatory training time, 52.. condition of employment, 52.. pursuant to statute or regulation, 52. option of employee, 53.. not constituting hours of work, 53 Travel time. commuting time not counted, 52.. exceptions, 52. travel for purpose of getting to where work performed, 52 V Vacation records. detailed records, 94. information included in records, 94-95. when to be prepared, 95-96 Vacation time and vacation pay entitlements. entitlement periods, 90-91; ESA 33.. basic rule, 90.. definitions, 90-91... alternative vacation entitlement year, 90; ESA 1(1)... standard vacation entitlement year, 90; ESA 1(1)... stub period, 90-91; ESA 1(1)... vacation entitlement year, 90; ESA 1(1).. twelve-month period of employment, 90. leaves of absence, interaction with, 82-84.. active and non-active employment included in determining entitlements, 82 478
.. leave included in calculating length of employment and seniority, 82-83.. vacation pay and vacation time accruing while on leave, 82-84... accrual of paid vacation entitlements on monthly basis being greater benefit, 82-84... deferral of vacation until leave expiring, 84... greater contractual right prevailing, 82... taking of vacation immediately after leave expiring, 84... vacation pay in lieu of taking vacation, electing, 84. record-keeping requirements, 94-96.. detailed records, 94.. information included, 94-95.. stub period, in respect of, 95.. when required to be prepared, 95-96. statements provided to employees annually, 96.. not entitled where vacation pay received as accruing, 96.. when provided, 96... where request made during stub period or vacation entitlement year, 96. vacation with pay, 91-93.. election not to take vacation, 94; ESA 41.. employment contract granting greater benefit, 93.. length of vacation periods, 91, 93... between one and two week blocks taken in row where, 93.... unless employer agreeing to shorter periods, 94... first five days taken in row, unless agreeing otherwise, 93-94... shorter periods, scheduling in, 93-94.. tenure of less than 5 years entitlement, 81; ESA 34(2).. tenure of more than 5 years entitlement, 81; ESA 34(3).. timing and manner of providing vacation pay, 94... lump sum before taking vacation, 94; ESA 36(1) 479
.... four exceptions, 94... timing of vacation, ESA 35, 35.1.. vacation pay: payment during such time off work, 92... four per cent of gross wages if tenure less than 5 years, 92; ESA 35.2.. six percent of gross wages if tenure more than 5 years entitlement, 92; ESA 35.2.. vacation time: time off work, 92.. vacation time vs. vacation pay, 92-93... vacation pay where terminated before vacation taken, 92; ESA 38.. when to be taken, 93... Alternative Vacation Entitlement Year, 93... rules, 93... Standard Vacation Entitlement Year, 93... Stub period, 93 Volunteers, 45 W Wages, See also Minimum wage, and Overtime. deductions from wages, 15-16; ESA 13.. circumstances in which employer can withhold wages, 15-16.. return of wages by employee, 16. defined, 47; ESA 1(1). equal pay for equal work, 19-22. methods of paying wages, 12; ESA 11(2). priority of wages over other unsecured creditors, 16; ESA 14(1). regular, recurring pay period and pay day, 11; ESA 11(1).. can be changed by employer, 12. statement of wages, 14; ESA 12(1).. content of written statement, 14.. electronic mail, 14; ESA 12(3).. termination, upon, 14; ESA 12.1... content of statement, 15... when provided, 14. termination, payment of wages upon, 101-102; ESA 11(5).. statement of wages, 14. three hour rule (effective January 1, 2019), ESA 21.3-21.7 480
Who is covered by ESA, 2000. application of Act, ESA 3. Crown employees, covered, 7. dual role employee, 8. employees not covered at all, 6-7. factors not relevant as to whether ESA applying, 6. most employees and employers covered, 5. special exemptions or rules, 6-9.. Regulation 285/01, 8.. special rules, 8-9... commissioned salespersons, 44-45... employers with dual roles, 8... independent contractor and person receiving services, 7-8.... misclassification of workers is contravention, 94... teachers at private/independent schools, 8-9... volunteers, 45. work performed in Ontario or both in Ontario and outside Ontario, 6.. whether continuation of work performed in Ontario, 5-6 Women s coats, suits and dres employment. reg. 291/01 Terms and Conditions of Employment in Defined Industries Women s Coat and Suit Industry and Women s Dress and Sportswear Industry, 428 Work deemed to be performed. appropriate compensation for employees, ensuring, 50. commuting time counted, whether, 52.. exceptions, 52.. meaning of commuting time, 52. deeming work to be performed in certain circumstances, 50-51. on-call employees waiting off-site not entitled to be paid, 51. on-call employees waiting on-site entitled to be paid, 51. overtime pay required even though working without employer s permission, 51. purpose of provisions, 50. work not deemed in certain circumstances, 51.. meal period, 51 481