March 25 Update: In light of the COVID-19 pandemic, the Canadian government has proposed legislation to establish a new kind of income replacement benefit called the Canada Emergency Response Benefit (CERB). The CERB will temporarily replace all new applications for Employment Insurance once it is in place. We don’t yet know if the CERB will require an ROE. Read more here.
When should an employer issue an ROE in case of termination of employment?
Section 19(3)(i) of the Employment Insurance Regulations (SOR/96-332) (“the Regulations”) state that an employer must issue the Record of Employment (“ROE”) within 5 days after the employee’s earnings are “interrupted”. According to section 14(1) of the Regulations, an “Interruption” of earnings is when:
- “an insured person is laid off or separated [i.e. a resignation or termination] from employment and has a period of seven or more consecutive days during which no work is performed for that employer and in respect of which no earnings that arise from that employment…”
In layman’s terms, an ROE must be submitted within five days after the first week after the employee is terminated. For example, if an employee is terminated on Monday, January 1, and the employee is not working beyond that date (severance packages don’t count for this purpose), then the employer must issue the ROE within five days after January 8.
When should an employer issue an ROE in case of approved leaves of employment (i.e. sickness, pregnancy, the need to care for a child, etc.)?
Section 14(2) of the Regulations state that an employer must issue the ROE within 5 days right after the employee takes his or her approved leave of absence from employment. There is no one week grace period for the employer to issue the ROE in this case.
When should an employer issue an ROE in case of termination of commissioned employees?
Section 14(5)(b) of the Regulations state that an employer must issue the ROE within 5 days right after the commissioned employee is terminated or takes his or her approved leave of employment. There is no one week grace period for the employer to issue the ROE in this case.
Record of Employment Issue Procedure
As discussed above, employers have up to five calendar days after the end of the pay period in which an employee’s interruption of earnings occurs to issue an ROE.
In layman’s’ terms, if the employer has a weekly or bi-weekly pay period cycle, it must submit the electronic ROE to Service Canada no later than five calendar days after the end of the pay period in which the interruption of earnings occurs. For example, if an employee stopped working on January 1 and he or she had a weekly pay period that runs from December 27 to January 5, then the employer must issue the ROE no later than five days after the end of the pay period, which is January 10. To be clear, in this example, the employer must submit the ROE by January 10.
Do employers have to give a copy of the ROE to the employee?
An employer is only required to give a copy of the ROE to the employee in case the employer still uses paper ROEs (which are rare). Rather, an employer is not required to provide the employee with his or her ROE if the employer already submitted the ROE electronically to Service Canada. An employer can register and submit the ROE electronically at ROE Web at this website. Employees who have registered with My Service Canada Account online services can view and print their own copies of their electronic ROEs by visiting this website.
What happens if the employer does not submit the ROE on time?
We wrote about what happens if an employer does not submit an ROE on time here.
What happens if the employer puts in the wrong code on the ROE?
This is rare. Usually, it is just a mistake. The employee should email the employer and politely ask to have the ROE changed. The employer can then use ROE Web to amend the ROE.
Alternatively, if there is a disagreement or no response from the Employer about the allegedly wrong EI code, the employee can put his or her side of the story in the application for EI. Failing that, the employee can argue again his or side of the story in the Application for Reconsideration for EI by following the instructions provided for in the EI decision from Service Canada by the deadline provided in that same decision. Otherwise, an employee can sue at the Small Claims Court (or add to his or her wrongful dismissal claim at the Superior Court if s/he has one) for inconvenience damages (if successful, usually these damages are assessed at $1000-$5,000 if the employee had to wait a long time to get EI because of the employer’s error).
Employers are welcome to contact our employment law firm for ROE issues and any other HR law issue for a free initial consultation. We do not assist employees in ROE matters. We would caution employees that the cost of hiring a lawyer just to get an ROE will outweigh the award. We would recommend consulting a paralegal or free legal clinic specializing in employment law if all you require is an ROE.
At Dutton Employment Law, we know what it is like to lose a job. We have acted for many terminated employees and we understand what they are going through. One step in moving on is getting a fair severance package. The next step is getting back on your feet by landing a new, better job or finally starting your own business.
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Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.