Welcome to Dutton Employment Law. Contained below is our guide to the Ontario Employment Standards Act (“ESA”). Clicking on the links below for the basic rights in the Employment Standards Act will take you to our summary article on each specific topic.
What is the Employment Standards Act?
The Employment Standards Act, officially called the Employment Standards Act, 2000, provides minimum “employment standards” for most employees in Ontario. “Employment standards” are the rights of employees and responsibilities of employers in Ontario. Essentially, employment standards are a floor in which employers cannot provide anything less than. For example, the minimum wage is an employment standard and therefore employers cannot pay anything less than the prescribed minimum wage in Ontario.
The Employment Standards Act is a statute, meaning it is government made legislation. A copy of the Employment Standards Act is here.
What is the purpose of the Employment Standards Act?
The Supreme Court has noted the Employment Standards Act is a mechanism for providing minimum benefits and standards to protect the interests of employees. In addition, the Employment Standards Act provides relatively quick and cheap means of resolving employment disputes (employees can make complaints to the Ministry of Labour and the Ministry of Labour can enforce complaints for free).
When was the Employment Standards Act enacted?
The Employment Standards Act, 2000 was established by Bill 147 and proclaimed into force as of September 4, 2001. The Employment Standards Act, 2000 replaced the former Employment Standards Act, 1990.
What are the basic rights protected by the Employment Standards Act?
The minimum standards (i.e. basic rights) contained in the Employment Standards Act are as follows (click on the links to learn more):
- Hours of work
- Overtime pay
- Tips and gratuities
- Minimum wage
- Pregnancy and parental leave
- Sick leave
- Bereavement leave
- Family responsibility leave
- Family caregiver leave
- Family medical leave
- Critical illness leave
- Crime-related child disappearance leave
- Infectious Disease Emergency Leave
- Public holidays and other statutory pay
- Work breaks
- Termination of employment
- Temporary layoffs
- Equal pay for equal work
Who does the Employment Standards Act apply to?
The vast majority of employees in Ontario are covered by the Employment Standards Act. However, the Employment Standards Act does not apply to workers employed in federally regulated industries such as banking, telecommunications, and airlines. Federally regulated employer workers are covered by the Canada Labour Code not the Employment Standards Act.
What about “Independent Contractors”?
Only employees are covered by the Employment Standards Act; therefore, independent contractors are not protected by employment standards.
How to determine whether someone is an independent Contractor or employee?
Under section 5.1 of the ESA, it is illegal for employers to misclassify their employees as independent contractors or any other type of worker (i.e. interns and volunteers) not covered by the ESA. Where it is determined either by a court or a Ministry of Labour officer that an independent contractor is actually an employee, it may order the employer to pay the employee lump sum monies the employee ought to have earned while he worked for the employer as an ‘independent contractor’.
Who administers the Employment Standards Act?
The Employment Standards Act is administered by the Ontario Ministry of Labour, Training and Skills Development (“Ministry of Labour”).
What is the Ministry of Labour?
The Ministry of Labour is a branch of the Ontario government generally tasked with regulating minimum employment standards (i.e. minimum wage etc.) and eliminating workplace accidents.
The Ministry of Labour has the power to inspect workplaces to ensure compliance with the Employment Standards Act. In addition, the Ministry of Labour conducts investigations of employment standards complaints from workers. Lastly, the Ministry of Labour prosecutes employers allegedly in breach of the Employment Standards Act.
Who should make a Ministry of Labour complaint?
Employees with limited employment-related claims against their employer should consider filing a claim with an Employment Standards Officer at the Ontario Ministry of Labour. It is free and individuals do not need a lawyer.
The Ministry of Labour investigates employment standards complaints of unpaid wages, overtime and vacation pay, pay equity, leaves of absence (i.e. maternity leave), and rights upon termination, among others. After the Ministry has completed a complaint, it can order the employer to pay the employee.
The Ministry of Labour, however, is extremely limited in the remedies it can award an employee. Unlike the courts, the Ministry cannot hear a wrongful dismissal case and it cannot order common law damages.
However, if an employee simply has a complaint, for example, about overtime or unpaid hours, and no issue with termination pay, then they could forgo an employment lawyer and complain directly to the Ministry of Labour.
Caution: Employees should be very cautious before filing a complaint with the Ministry of Labour. Once an individual has filed a complaint, and two weeks have passed, they cannot change their mind and sue through the courts. At the same time, once an individual has sued in court, they cannot then file a complaint at the Ministry of Labour.
An employee with concerns regarding whether it is better to file a claim through the Ministry of Labour or to sue the employer in court should contact an employment lawyer before filing a claim. We offer free consultations for this issue.
How to Make a Ministry of Labour Complaint
Claimants should collect important documents about work histories, wages, important dates, contracts, and notes before completing the online claim process.
Claimants fill out an online Ministry of Labour claim form. The Ministry of Labour claim form is located here.
The ESA claim form asks for a lot of information, including information about the claimant (i.e. the person making the claim), the employer, the claimant’s work history and the claimant’s specific complaint. Be prepared, it could take an hour or more to complete the online form.
The basic information the ministry requires is marked by asterisks (*) on the ESA claim form. Missing information may cause a delay in processing a claim.
If the claimant does not know the answer to a question marked with an asterisk, they should record “unknown.” If the question does not apply to the claimant’s situation, they must record “not applicable” or “n/a”.
The Ministry of Labour will contact the claimant later and ask about missing information.
After a claim is filed online, the Claimant will receive a claim number immediately from the Ministry of Labour via email.
A Ministry of Labour officer will reach out the claimant generally by phone asking for supporting documents and more information about the claim. Later, the Ministry of Labour Officer may send a spreadsheet over email asking for evidence, specifically:
- copy of the claimant’s contract.
- relevant company policies.
- records, timesheets and schedules showing days, dates and hours worked by the claimant.
- job descriptions/duties/work schedules.
- correspondence/communication between the employer and claimant relating to the issue(s) in dispute; including documents like resignation or termination letters.
- record of employment.
- any relevant correspondence/communication between the employer and claimant relating to the issue(s) in dispute;
- any other documents that the claimant believes support their position, which can include contemporaneous notes taken at the time of the alleged violation.
TIP: Take notes whenever you believe your employer has violated your employment standards rights. You can use these notes later in your complaint as evidence.
The Ministry of Labour officer will ask the employer similar questions and ask them for their evidence. The Claimant does not participate in this process.
After reviewing all the facts and evidence, the Ministry of Labour officer will decide about the complaint. If the officer finds in favour of the employee, he or she will issue a written decision and then make an order for the employer to pay the employee monies.
If the employer decides to appeal the decision against them, or if the employee decides to appeal a decision in favour of the employer, then within 30 days, either party may file an appeal at the Ontario Labour Relations Board (“OLRB”), which is a special tribunal where the whole complaint is reheard.
How are Employment Standards Claims Act resolved?
There are four ways in which an Employment Standards Act claim can be resolved:
- 1. An officer investigates, finds the employer has violated the ESA,
- 2. An officer investigates, finds the employer has not violated the ESA, and denies the claim
- 3. The claimant and the employer settle the claim (the Ministry of Labour officer will canvass the parties to see if they are amenable to a settlement before a decision is made).
- 4. The claimant withdraws the claim.
What is the time limit for filing a Ministry of Labour complaint?
Employees must file a Ministry of Labour claim within two (2) years of the alleged violation.
Can unionized employees file Employment Standards Act complaints?
Employees represented by a union cannot file an employment standards claim. These employees must use the grievance procedure contained in their collective agreement.
ESA Common Questions
Can employers contract lesser rights than employment standards?
Employers cannot contract nor can employees agree to waive or lessen their rights under the Employment Standards Act. Any such agreement is null and void. For example, where a termination clause in an employment contract provides lesser rights than employment standards, it is void.
Can employers provide greater rights than employment standards?
Yes! If a provision in a contract or some other agreement gives an employee a greater right or benefit than a minimum employment standard, then that term applies not the applicable employment standard.
What is the difference between the Employment Standards Act and common law?
The “common law” is implied rights of employment that have been made over time by judges from court decisions called “precedents”. For instance, it is a common law right that an employer cannot reduce an employee’s salary. On the contrary, the Employment Standards Act is silent on the reduction of salary except to say that an employer cannot reduce a salary by less than the minimum wage. To that effect, the Employment Standards Act is a floor while the common law is a ceiling.
The common law, unlike legislated employment law (i.e. the Employment Standards Act), does require the assistance of a lawyer to make a complaint. This is because the only way to get recourse under the common law is to sue in a court (the Ministry of Labour does not have the jurisdiction to give common law remedies), which should be handled by a licensed lawyer practising exclusively in employment law. Read more about what does an employment lawyer do?
Employment Standards Act Top Questions
Can a job force you to work on your day off?
Nothing in the Employment Standards Act protects employees from their employer forcing them to take days off. However, forcing many days off could be, under the common law, a constructive dismissal.
Can my employer cut my hours of work?
Nothing in the Employment Standards Act protects hours of work (except maximum hours per week). However, under the common law, reduced hours or even increased hours could be a constructive dismissal.
Can my employer change my job?
Nothing in the Employment Standards Act protects job changes. However, forced job changes could be a constructive dismissal under the common law.
Can my employer reduce my salary?
Nothing in the Employment Standards Act protects salary – an employer is free to reduce employee pay so long as it does not go below minimum wage. However, a reduction in salary could be a constructive dismissal under the common law.
Can my employer pay me less than similar employees?
Generally, nothing in the Employment Standards Act prohibits an employer from paying someone differently for the same work. Employers are allowed nepotism or favouritism and of course, they can reward better employees. However, under section 42 of the Employment Standards Act, no employer can pay an employee of one sex at a rate of pay less than the rate paid to an employee of the other sex when they perform substantially the same kind of work and their performance requires substantially the same skill, effort and responsibility; and their work is performed under similar working conditions unless such disparate pay is the result of:
- (a) a seniority system; or
- (b) a merit system; or
- (c) a system that measures earnings by quantity or quality of production.
Can my employer fire me without any reason?
Nothing in the Employment Standards Act requires an employee to provide reasons for termination unless it a termination for cause. Accordingly, an employer owes no reasons to employees fired without cause. However, the employer would owe a without-cause dismissed employee the following notice (or pay in lieu of notice) as per the Employment Standards Act:
|Amount of notice required|
|Period of employment||Notice required|
|Less than 1 year (but at least 3 months)||1 week|
|1 year but less than 3 years||2 weeks|
|3 years but less than 4 years||3 weeks|
|4 years but less than 5 years||4 weeks|
|5 years but less than 6 years||5 weeks|
|6 years but less than 7 years||6 weeks|
|7 years but less than 8 years||7 weeks|
|8 years or more||8 weeks|
In addition, some employees are entitled to Employment Standards Act severance on top of Employment Standards Act notice. An employee qualifies for Employment Standards Act severance pay if they:
- have worked for the employer for five or more years, and
- their employer:
- has a payroll in Ontario of at least $2.5 million; or
- terminated the employment of 50 or more employees in a six-month period because all or part of the business permanently closed.
Employees get one week of Employment Standards Act severance pay for every year of completed service up to a maximum of 26 weeks’ pay. To be clear, the maximum amount of severance pay required to be paid under the Employment Standards Act is 26 weeks. Thus, with ‘severance’ in conjunction with ‘notice’, under the Employment Standards Act, long-tenured dismissed employees could be entitled to 34 weeks pay.
Important: unless an employment contract says otherwise in a valid and enforceable termination clause, most employees are entitled to common law severance which is worth more than Employment Standards Act notice/severance. However, only a lawyer can sue for common law severance. The Ministry of Labour has no jurisdiction to award common law severance.
Can my employer force me to go on overtime?
Nothing in the Employment Standards Act prohibits an employer from forcing someone to work overtime. However, the Employment Standards Act does require that employees agree to work more than 8 hours in a day or 48 hours in a week, and in addition, the Employment Standards Act prescribes special pay for all hours worked that are considered “overtime”. Overtime begins once an employee has worked more than 44 hours in a workweek. Overtime Pay is 1½ times the employee’s regular rate of pay.
Can my employer force me to go on a Performance Improvement Plan (PIP)?
Nothing in the Employment Standards Act prohibits an employer from placing an employee on a PIP. Read here for more information about PIPs.
Can my employer ask me for a doctors note?
Yes, for Sick Leave, in Ontario, an employer can ask for a sick note.
Jeff is a lawyer in Toronto who works for a technology startup. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles. Jeff is interested in Canadian business, technology and law, and this blog is his platform to share his views and tips in those areas.