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Copy of The Employment Standards Act, 2000

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Danielle Curley

on 30 October 2013

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Transcript of Copy of The Employment Standards Act, 2000

The Employment Standards Act, 2000
Introduction
1. Consider the purpose of the Ontario Employment Standards Act, 2000 in setting minimum rights for employees;
2. Examine the minimum standards that apply to wages, hours of work, public holidays, overtime pay, vacation, and statutory leaves;
3. Review the protections available to employees who exercise their rights to statutory leaves including pregnancy, parental, family medical, and personal emergency leaves;
4. Examine how rights and protections under the Act are enforced
5. Provide case studies in regards to the ESA

8 Minimum Standards of ESA
1. Minimum Wage
2. Hours of Work and Eating Periods
3. Overtime Pay
4. Vacation
5. Public Holidays
6. Statutory Leave of Absence
7. Lie Detector Tests
8. Termination Notice and Severance Pay

Flaws of the ESA
Major Flaws and Loopholes with the Employment Standards Act:
Application of the ESA
There are several key aspects to the administration and enforcement of the employment standards act. Those processes include:
1. Filing a complaint
2. The investigative Process
3. Officers Decision
4. Appeals of the Officers Decision
5. Offences and penalties
6. Ministry of Labour Information Bulletins and Fact Sheets
7. New Regulatory Powers to Share Information between Ministries


First appeared in 1968.
Provides the minimum standards for working in Ontario
Sets out the rights and responsibilities of employees and employers in Ontario workplaces
Subjects covered under the ESA include:
Hours of work
Overtime premium pay
Public holidays
Vacation time and pay
Termination notice
Severance pay

A presentation by:
Jessica Comeau
Charlene Cowles
Steven Craig
Danielle Curley
Lindsay Curtis
Kristen Dawson

1. Minimum Wage
Section 23 of the ESA
Defined as the lowest hourly wage that an employer can pay an employee
Currently $10.25
Minimum Reporting Pay: The Three-Hour Rule
There are occupations that have special wage rates including: liquor service, full-time students, hunting or fishing guides, home workers
There are also special situations: room and board, harvesting, commissions
2. Hours of Work & Eating Periods
Maximum number of hours that an employee is required to work:
8 hours per day
48 hours per week
30 minute eating period after 5 consecutive hours of work (employer is not required to pay for this time)
Employer is not required to provide coffee breaks

Hours of work continued...
There are exceptional circumstances (s. 19) an employee can be required to work beyond maximum:
emergencies such as natural disasters
public service employee (ex. hospitals, firefighters…)
seasonal operating (ex. snow plowing)
urgent repair work
Does not include situations such as rush orders, taking inventory, absenteeism, seasonal busy periods or routine maintenance

3. Overtime
Section 22 employers must pay employees overtime pay:
1.5 times their regular rate of pay after 44 hours in a week
There are many exemptions due to job categories and company policies
ex. managerial employees (those who hire, fire and impose discipline)

4. Vacation
Sections 33-41 of the ESA
Difference between vacation time and vacation pay
Employees are entitled to pay but they are not entitled to time
Vacation time is dependent on company policies/collective agreement terms and conditions as well as the length of employment
Vacation pay covered under the legislation
at least equal to 4% of wages earned over a 12 month period

5. Public Holidays
Section 24-32 of the ESA
9 public (statutory) holidays:
New Year’s Day
Family Day
Good Friday
Victoria Day
Canada Day
Labour Day
Thanksgiving Day
Christmas Day
Boxing Day

What is the Employment Standards Act, 2000?
Public Holidays Continued...
Employees must fulfill only 2 conditions to qualify for a paid public holiday:
1. fail, without reasonable cause to work their shift on either of their regularly scheduled days of work immediately before or immediately after the public holiday
2. fail, without reasonable cause to work their entire shift on the public holiday of they agreed to work or were required to work that day
There are exceptions on public holiday pay depending on the job category/industry.

6. Statutory Leaves of Absence
Section 45-53 of the ESA

• These include:
– pregnancy leave
– parental leave (1990)
– personal emergency (2000)
– family/medical (2003)
– declared emergency
– reservist (2007)
– organ donor (2009)
• Each require specific qualifications*
7. Lie Detector Tests
Sections 68-71 under the ESA

• Employees, including job applicants, have right not to:
– take a lie detector test,
– be asked to take a lie detector test, or
– be required to take a lie detector test
• The only provision that applies is to police officers or applicants for a police officer job
Statutory Leaves of Absence Continued...
• During a leave there are rights under the ESA that protect employment:

– Right to reinstate
– Right to salary plus increases
– Right to retain benefits
– Right to accrue seniority
– Right to vacation Entitlement
– Right to be free from reprisals
8. Termination Notice & Severence Pay
Termination Notice covered under section 57
• 3 main statutory requirements:
1. Employers must provide notice of termination between 1-8 weeks’ to individual employees
2. Termination pay for mass group layoffs, replaces the individual notice requirement above
3. Certain situations require severance pay, this entitlement exists in addition to termination pay or notice
Termination Notice & Severance Pay Continued…
• Severance Pay covered under section 63-66
• It is one time lump sum payment
• severance pay is generally intended to compensate longer-term employees for their loyalty, loss of seniority and loss of job related benefits
• to qualify for severance pay, an employee must have worked for the employer for five or more
years
• qualifying employees are entitled to receive severance pay in the amount of one week’s pay for each year’s service, to a maximum of 26 weeks
2. The Investigative Process
- complaint is filed
- 15 days notice is given before Employment Standards Officer will meet with employer and employee for preliminary investigation
- an employment standards officer has the power to go into organization even when no claim is filed
1. Filing a Complaint
- File complaint with Ministry of Labour
- Employment Standards Officer assigned to case
- 2 time limits to focus on when making a claim:
Who is covered under the ESA?
Most employees and employers in Ontario are covered but those who are not covered include:
employees in federally regulated sectors such as banks, airline, and broadcasting
secondary schools students working in a work-experience programs authorized by their school board
college of university students working under a program approved by the institution
individuals involved in community participation (Ontario Works Act, 1997)
police officers except with respect to the lie detector provisions
employees of embassies
inmates of correctional institutions
people working in simulated jobs (i.e., rehabilitation)
people who hold political, judicial, religious or trade union offices

Important Dates in Ontario Employment Standards Legislative History
Key Features of the ESA
1. The ESA sets minimum standards for employees
2. Greater right or benefit for the employee
3. The ESA covers most employees
4. Enforcement of rights under the ESA is a complaint-based process
5. Unionized employees are covered by the ESA
6. Except for the personal emergency leave and severance pay provisions, The ESA binds all employers with exceptions, regardless of size

What is the Open For Business Act?
The Open for Business Act was created in October 2010 and was intended to create simpler, better and faster interaction between government and business.

The Act was an attempt to manage Employment Standards enforcement that have grown out of decades of ineffective Employment Standards legislation.

3) Employment Standard Officers as Settlement Brokers
1) Before workers can file an employment standards complaint they must first try and enforce their employment standards rights with their employer.
2) Screening those employees who are lacking definitive and undisputable proof of violations.
Other Flaws in the ESA
1) Can’t file a claim and take your Employer to Court

2) ESA and Students

3) ESA and the shift towards more part-time/temporary workers
Case Study Example
Tri Roc Electric Ltd. v. Bulter (2003)
Do you think that Bulter should have been paid for the overtime that he was putting in while performing a supervisor role in the business?
3. The Officer's Decision
- The Employment Standards Officer will either find a contravention or find no offense
- If nothing is found, employee will be notified in writing and can apply for review within 30 days
- If officer finds contravention and employer does not agree with the officers decision, the ESO can issue an order
4. Appeals of the Officer's Decision

- can be done by either party within 30 days of notice or when order was served
- employer must also pay the order of wages and admin fees before they can appeal it
- If the employer fails to appeal this, the order becomes final and binding by the employer
7. New Regulatory Powers to Share Information Between Ministries
- Ontario Regulatory Modernization Act, 2007
- allows government agencies to share compliance and complaint related information
- should have a representative in the organization to coordinate compliance with all provincial regulations
5. Offences and Penalties
- in S.132 it is an offense to breach the ESA regulations and not comply with an order
- providing false or misleading information, making, keeping or producing false records are also an offense
- individuals and organizations can be fined if they do not comply
6. Ministry of Labour Information Bulletins & Fact Sheets
- Provided by the Ministry of Labour
- includes bulletins and fact sheets
- does not bind the courts
- provides valuable information
Administration and Enforcement -
Contravention Orders
1. Order to pay wages - Employer pays wages owing plus administration fees to employee

2. Compliance order - For non-monetary violations only and requires employees to perform, or stop performing actions that conflict with the ESA

3. Notice of Contravention - Employment Standards Officer issues a penalty. If there is more than one individual being affected, these numbers are increased per individual

4. Reinstate or Compensate an employee - Different from the first order to pay wages because it is not limited to $10,000 per employee. Must reinstate or compensate an employee for the full amount owing
6 Months

- Under S. 111, there is a six month time limit for recovering unpaid wages.
- when violation is made by employer repeatedly and occurred in first 6 months before the claim was filed, the employee can recover all wages due in the 12 months before the complaint was made.
2 Years

- Under S. 96 (3), claims related to leaves of absence, retail business establishments, lie detectors, failure to provide meal breaks or wage statements, and reprisals have a 2 year time limit.
- Reprisals given when:
a. Asking the employer to comply with the ESA
b. Asking questions about rights under the ESA
c. Filing a complaint
d. Exercising or trying to exercise a right under the ESA
e. Taking, planning to take, or being eligible to take a leave of absence (parental, pregnancy, emergency, family medical related)
f. Being the subject of a garnishment order
g. Participating in a proceeding under the ESA

College or University Students working under a program approved by their institution are not covered by the employment standards act.

Thoughts?
Full transcript