Have you ever had questions about your job and didn’t know who to ask or didn’t feel comfortable asking? When you are a student, it can be a little intimidating.
THINGS YOU SHOULD KNOW:
Ontario’s Employment Standards Act (ESA) covers most people working in Ontario, including students. This post is a basic introduction to some of the more common questions students have asked me about the ESA. For more detailed information refer to the act itself: Ontario Employment Standards Act Guide.
What is minimum wage? Minimum wage is the lowest wage rate an employer can pay their employees.
Tips or gratuities are not considered wages and will not be considered in determining whether an employee is receiving at least minimum wage, unless they are a server.
There are several minimum wage rates in Ontario including general minimum wage ($14.25 currently) that applies to most employees and a student minimum wage ($13.40)for students under 18.
Why are servers paid less than minimum wages? The minimum wage for servers is currently $12.45, their minimum is lower because they regularly earn tips as part of their income.
Do I have to split my tips as a server? Employers cannot withhold tips and other gratuities from servers. However, an employer can withhold, make deductions from, or make an employee return their tips and other gratuities where they are: following a court order or statute, or redistributing them as part of a tip pool.
Can an employer charge me for damages or mistakes or to pay for losses? Employers cannot make deductions from their employees to cover things like spillage, breakage, losses or damage, etc.
How does over-time work? The ESA requires employers to pay most employees overtime of one and a half times their regular rate of pay for each hour of work over 44 hours a week. If an employee and employer agree electronically or in writing, the employee can take one and a half hours of paid time off work for each hour of overtime worked (time off in lieu). The paid time off must be taken within three months of the work week in which the overtime was earned or, with the employee’s electronically or written agreement, within 12 months of that work week.
There are individuals and jobs that are not eligible for overtime, including: pool installers and/or maintenance workers; landscape gardeners; growers and transporters of sod; and a person employed as a student to instruct or supervise children.
Note: If an employer wants to average your hours over a 2 week pay period before having to pay overtime; the employer must have an agreement in writing with you are free to change your mind at anytime.
Do I get paid for statutory holidays? Most employees, are entitled to take the following public holidays off with public holiday pay: New Year’s Day; Family Day; Good Friday; Victoria Day; Canada Day; Labour Day; Thanksgiving Day; Christmas Day; and Boxing Day.
Public holiday pay is calculated by taking your total regular wages earned plus vacation pay payable in the four work weeks before the public holiday, divided by 20.
Employees who work in a hotel, motel, tourist resort, restaurant, tavern, hospital or any similar other place that doesn’t close for the holiday may be required to work on a public holiday. This is the case only when the public holiday falls on a day that they would ordinarily work, and they are not on vacation.
There are special rules about substitute days off and pay for work performed on a public holiday. Generally, in order to qualify, you have to work your last regularly scheduled shift prior to the holiday and all of the next shift after the holiday. If you agree to work on a statutory holiday that is not your regular day to work then you are entitled to be paid premium holiday pay (time and a half) for every hour you work on the holiday.
There are jobs that are not entitled to take a public holiday off or to be paid public holiday pay, including: the installers and maintainers of swimming pools; landscape gardeners; growers and transporters of sod; and a person employed as a student to instruct or supervise children.
How many breaks do I get? Most employees may not work longer than five hours in a row without getting a 30-minute eating period. If the employer and employee agree, the 30-minute eating period may be taken as two breaks within each five-consecutive-hour work period. Meal breaks are normally unpaid, and interestingly employers don’t have to give “coffee” breaks or any other kind of break other than the eating period.
Do students get paid a minimum amount when they are called in to work? Usually, when an employee who regularly works more than three hours a day is called in to work, but works fewer than three hours despite being available to work longer, the employer must pay for a minimum of three hours at the employee’s regular rate of pay – even if the employee does not work that much time.
This three-hour rule generally applies to students, including students over 18 years of age; however, that the three-hour rule does not apply to students who work: at a children’s camp, provides instruction to or supervising children, or works in a recreational program run by a charity.
Do I get vacation pay? Most employees, are entitled to a minimum of two weeks of vacation with pay after each 12 months of employment. Many employers simply add 4% (equivalent of 2 weeks holidays) vacation pay onto each pay. Your employer may include this “vacation pay” on each pay or hold the amount until you take your vacation. Employees must receive their vacation pay, and any wages due, no later than seven days after employment ends, or on what would have been their next regular pay day.
Are students who are employed in retail required to work on public holidays and on Sundays? The ESA contains rights that apply to sales and non-sales employees, including managers, as well as to cleaners and security guards who work in a shopping mall. Retail workers generally have the right under the ESA to refuse to work on public holidays, even if they do not qualify for public holiday pay. Retail workers who agreed electronically or in writing at the time of being hired to work on Sundays, cannot refuse to work on Sundays except in certain circumstances for reasons of religious belief or observance. Employees generally who work in restaurants, hotels, tourist resorts, museums, art galleries, amusement services also do not have the right to refuse to work on Sunday’s.
What are the rules about dress codes? Your employer is responsible for making decisions about dress codes, uniforms and other clothing requirements. However, a dress code can’t violate a collective agreement, the Ontario Human Rights Code or the Occupational Health and Safety Act.
Must employees produce a doctor’s note if asked for one by their employer? If requested by the employer, the employee is required to provide the employer with a copy of a medical certificate relating to the employee’s family caregiver, family medical, or critical illness leave. Note, your doctor will usually charge for this service.
Do I have to work more than 8 hours a day? You have the right to refuse to work more than 8 hours a day without penalty. Your employer must have a written agreement with you for shifts that are longer than 8 hours.
Can my employer change my schedule without telling me? The ESA does not include provisions regulating the scheduling of work by employers. Therefore, there is no provision that requires an employer to provide advance notice of shift schedules or of last-minute changes to existing schedules.
My employer says that my shift ends at 5pm, but that is just when the store closes, I am supposed to stay and clean and I am there for 15 for 20 minutes working for free, can they do that? The short answer is “no”, you are entitled to be paid for your work.
Do have to attend training on my own time? Once you are officially an employee, you cannot be forced to take training without pay. If you require training in order to do your job, it’s your employer’s responsibility to pay you at least minimum wage (plus overtime, if applicable). This includes everything from job shadowing on your first day to learning how to operate a new piece of machinery in your fifth year.
There are some exceptions. Employers are not obligated to pay if: You are a potential employee obtaining qualifications necessary to be considered for hiring; As a condition of hire, you agree to obtain additional training on your own time at your own expense; A test or training is given to you as a prospective employee as part of the hiring process; You request specific training or education (in this case, you and your employer need to come to an agreement to determine whether or not you will be paid for the training time).
It is important to remember that training or education of any kind is not just a benefit to your employer, but is also a benefit to your career in the long run. Don’t shy away from requesting additional training from your employer as they may be willing to pay for you to take it, and if not, consider doing it anyway on your own time.
Do employers have to tell students workers in advance if they are going to end their employment? After working for an employer continuously for three months, most employees must receive advance notice in writing and/or termination pay when their employer ends their employment. The amount of notice depends on how long they have worked for the same employer:
- Three months or more but less than one year, one week’s notice must be given.
- One year or more but less than three years, two weeks’ notice must be given.
- After three years, one weeks’ notice must be given for each year worked, to a maximum of eight weeks.
- If an employee has been with an employer for at least five years, they may also be entitled to receive severance pay upon termination of employment
Some employers will give you “pay in lieu” of notice instead of having you work during the notice period.
Does your employer have to tell you about the ESA? All employers have to inform you about the ESA when you are hired and should have a copy of the ESA poster that is accessible to all employees.
What if my employer does not follow the ESA? If an employee thinks their employer is not complying with the ESA, they can call the Employment Standards Information Centre at 416-326-7160 or toll free at 1-800-531-5551 for more information about the ESA and how to file a complaint.
Complaints are investigated by an employment standards officer who can make orders against an employer.
Employees, including Students can’t be penalized in any way for:
- Asking their employer to comply with the ESA;
- Asking questions about rights under the ESA;
- Filing a complaint under the ESA;
- Exercising or trying to exercise a right under the ESA;
- Giving information to an employment standards officer;
- Taking, planning on taking, being eligible or being in a position to become eligible to take a sick, family responsibility, bereavement, family caregiver, family medical, critical illness, parental, pregnancy, reservist, organ donor, domestic or sexual violence, child death or crime-related child disappearance leave;
If an employee believes they have been penalized, or the employer has threatened to penalize the employee for any of the above reasons, the employee may file a claim with the Ministry.
Are there jobs not covered by the ESA? Co-op programs for secondary school students; Ontario Works Community Participation programs; young offenders are who performing work as part of a sentence or court order; College or University co-op programs; and employees whose jobs are regulated by the federal government such as airlines, banks, the federal civil service, post offices, radio and television stations, inter-provincial railways, and inter-provincial trucking.
Summary
If you have a question about your job, ask your supervisor or employer. The vast majority of employers are excellent to their employees; however, if you are unsure, check out the resources below.
GREAT RESOURCES:
Ontario Employment Standards Act – What young workers should know? Employment Standards Act questions
Do I have to attend training without being paid – Teamsters 987