employment standards in ontario s hospitality … · 2 ontario restaurant hotel & motel...

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Ontario Restaurant Hotel & Motel Association 2600 Skymark Avenue, Suite 8-201, Mississauga, ON L4W 5B2

(905) 361-0268 (800) 668-8906

EMPLOYMENT STANDARDS IN ONTARIO’S HOSPITALITY INDUSTRY

A GUIDE FOR BUSINESSES ON THE EMPLOYMENT STANDARDS ACT, 2000

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(905) 361-0268 (800) 668-8906

EMPLOYMENT STANDARDS IN HOSPITALITY

Disclaimer: The following guide has been prepared using information from the Ministry of Labour to help employees and employers understand some of the minimum rights and obligations established under the Employment Standards Act, 2000 (ESA) and regulations. It is not legal advice and is not to replace the ESA or regulations. Reference should always be made to the official version of the legislation.

OVERVIEW Ontario’s Employment Standards Act, 2000 (ESA) sets the minimum standards for wages and other conditions of employment in the province. Employers and employees cannot contract out of or waive any of these standards however employers can offer a greater right or benefit above these standards.

Who does the ESA Cover?

The ESA covers employees who are categorized by the following characteristics:

Persons who performs work for an employer for wages

Persons who supplies services to an employer for wages

Persons who receive training from the employer

Persons who is a home worker

A person who was an employee Exceptions, Exemptions & Special Rules The ESA does not apply to certain individuals, for example:

Federal jurisdiction (e.g. banks, airlines, etc.)

Some students in work experience programs

Office holders (e.g. judges, politicians, etc.)

People who do community participation under the Ontario Works Act, 1997 Certain industries and/or jobs are exempted from particular minimum standards of the ESA or have special rules about how the minimum standards apply. Independent Contractors Independent Contractors are not covered under the ESA. Things to consider when determining if one is an employee or independent contractor:

You own and are responsible for some or all of the tools or equipment you use to do your job

You are in business for yourself, make profit and have a risk of losing money from the work you do

You determine how and/or where your work is completed

You can subcontract some of your work

The business can end your contract for services but cannot discipline you

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(905) 361-0268 (800) 668-8906

As an employer/contractor, the following policy must be adhered to:

If someone is an employee under the ESA, it is a violation of the Act for an employer to treat that person as any kind of worker other than an employee. For example, the ESA prohibits an employer from treating an employee as an independent contractor.

Employment Standards Poster Requirements The Ontario Minister of Labour has prepared a poster called “Employment Standards in Ontario”. This poster contains a brief summary of the main standards of the ESA and is available online at Ontario.ca/ESAposter

Employers are required to post the current version of the poster in their workplace in a place that is visible to all employees such as a lunch room.

If the majority language in a workplace is not English, the ESA poster is to be available in the majority language (if translated version is available) along with the English version.

In addition to posting a copy of the ESA poster in the workplace, employers are required to give all employees (who are covered under the ESA) a copy of the poster within 30 days of the date the employee is hired.

If an employee requests a translated version in a language other than English, the employer must provide the employee with both the English version and requested language version if that translation is made available by the Ministry of Labour.

Basics In compliance with the ESA, an employer must:

Establish a recurring pay period and pay day

Pay wages by cash or cheque at the workplace or an agreed alternate locate or by direct deposit

Provide a wage statement in written or electronic form with all required information

Keep wage statement records for three years

Make only authorized deductions (e.g. income tax, EI, CPP)

May make deductions with employee written authorizations but cannot deduct from wages for fault work even with authorization.

Minimum Wage

From January 1, 2018 to December 31, 2018:

General $14.00

Homeworkers $15.40

Liquor Servers* $12.20

Students** $13.15 * Must, as a regular part of their employment, serve liquor directly to customers, guests, members or patrons in licensed premises and regularly receive tips or other gratuities from their work. ** Must be under 18 years of age working 28 hours or less a week, or during a school holiday.

https://www.ontario.ca/page/posters-required-workplace#section-1

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Hours of Work

Daily Limits: Eight hours a day or the number of hours in a regular work fay if it’s more than eight. (Longer hours are permitted only with a written agreement of the employee.) Weekly Limits: 48 hours in a work week. (Longer hours are permitted with a written agreement of the employee and approval of the Director of Employment Standards.) NOTE: The Employer must give employee the most recent information sheet from the Ministry of Labour on Hours of Work and Overtime before the written agreement is made.

Overtime Pay & Public Holidays Overtime:

1.5 x regular rate after 44 hours of work per week.

Provisions for time-in-lieu are permitted with written agreement.

Provisions for averaging are permitted with written agreement and Ministry approval. Public Holidays:

There are nine public holidays per calendar year: o New Year’s Day o Family Day o Good Friday o Victoria Day o Canada Day o Labour Day o Thanksgiving Day o Christmas Day o Boxing Day

To be entitled to the public holiday with pay employers must work their scheduled shift before or after the public holiday unless reasonable cause (something beyond the employee’s control) prevents them from working.

Ontario is conducting a review of the public holiday rules under the ESA. In the interim, there are different formulas for calculating public holiday pay, depending on when the holiday occurred: Public Holiday Pay Calculation for dates between July 1, 2018 to December 31, 2019:

Regular wages earned plus vacation pay payable in the four work weeks prior to the work week in which the public holiday falls, divided by 20.

Public Holiday Pay Calculation for dates between January 1, 2018 to June 30, 2018:

Regular wages earned in the pay period immediately preceding the public holiday, divided by the number of days the employee worked in that period.

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Different Calculation:

If an employee is on a personal emergency leave, on vacation, or a combination of the two for the entire pay period immediately preceding the public holiday.

If an employee was not employed during the pay period immediately preceding the public holiday.

Vacation & Vacation Pay As of January 1, 2018 For employees employed less than 5 years:

Vacation time: Two weeks of vacation time after completion of Vacation Entitlement Year (VEY).

Vacation pay: Four per cent of gross wages earned in the VEY. For employees employed for 5 years or more:

Vacation time: Three weeks of vacation time after completion of VEY

Vacation pay: Six per cent of gross wages earned in the VEY. The employer can decide on vacation timing with the following restrictions:

No later than 10 months after the completion of the VEY

Can only be in one-week, two-week, or three-week blocks unless the employee requests in writing to take vacation in shorter periods and the employer agrees in writing to this request.

Leaves of Absence As of January 1, 2018 Job protected and unpaid time off work is available for:

Pregnancy Leave (17 weeks)

Parental Leave (61 or 63 weeks)

Personal Emergency Leave (10 days per calendar year) o 2 paid days

Family Medical Leave (28 weeks in a 52-week period)

Family Caregiver Leave (8 weeks per relative per calendar year)

Critical Illness Leave o 37 weeks in a 52-week period – minor child o 17 weeks in a 52-week period - adult

Reservist Leave (deployment period)

Organ Donor Leave (13 weeks)

Child Death Leave (104 weeks)

Crime-Related Child Disappearance Leave (104 weeks)

Domestic or Sexual Violence Leave (10 days and 15 weeks per calendar year) o 5 paid days

Declared Emergency Leave

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(905) 361-0268 (800) 668-8906

The Ministry has developed a medical certificate document that can be used for family caregiver leave, critical illness leave and/or family medical leave. For information on entitlement to Employment Insurance benefits/ programs, please contact Service Canada. The right to leave consists of the right to:

Be away from work.

Not be penalized in any way for being eligible to take a leave, intending to take a leave, or taking a leave.

Ne reinstated to job most recently held (if it still exists) or a comparable position (if the most recently held position does not exist) at the end of the leave.

Continue to accrue credit for seniority, length of employment and length of service.

Continue to participate in certain benefit plans (except Reservist Leave).

Notice of Termination Generally, when an employee has his or her employment terminated, he or she is entitled to written notice of termination or termination pay.

• Written Notice: There are certain requirements an employer must meet during the notice period. Once an employee has been continuously employed for three months:

Period of Employment Notice of Termination

Less than 1 year 1 week

1 year to less than 3 years 2 weeks

3 years to less than 4 years 3 weeks

After 4 years 1 week per completed year up to 8 weeks

An employer can pay termination pay in place of working notice. There are special rules for “temporary layoffs” and when 50 employees or more are terminated in a four-week period (aka “mass terminations”).

Severance Pay Employees whose employment is severed may be entitled to severance pay.

• Qualification: o Employed five years or more o Employer has $2.5 million payroll o Permanent discontinuance of all or part of employer’s establishment and

employee is one of 50 or more employees whose employment is severed within six-month period.

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(905) 361-0268 (800) 668-8906

• Severance pay calculation: [Regular wages for regular work week x # of completed years of employment] + [Regular wages for regular work week x (# of completed months of employment for a year not completed ÷12)]

Tips & Other Gratuities Employers are not permitted to withhold or make deductions from their employees’ tips and other gratuities unless they are:

Required by law

Court ordered

Administering a tip pool (a collection of tips collected from employees that is redistributed amongst some or all of the employer’s employees. This includes tip outs.)

Employers are permitted to keep the credit card processing fee portion of tips. Employers are not allowed to keep a portion of an employee’s tips and other gratuities to cover things such as spillage, breakage, losses or damages, etc. For more information, visit Ontario.ca/tipsandgratuities or call ORHMA at 905-361-0268.

Equal Pay for Equal Work – As of April 1, 2018

An employee cannot pay an employee at a rate of pay less than another employee on the basis of sex or because of a difference in employment status when:

They perform substantially the same kind of work

In the same establishment

Their work requires substantially the same skill, effort and responsibility

Their Work is performed under similar working conditions

All of these conditions must be met for equal pay for equal work to be required. Exceptions:

Even if employees of different sexes or different employment statuses are doing equal work, they can be paid different rates of pay if the difference is due to:

o Seniority system o Merit system o A system that measures earnings by production quantity or quality o Any other factor other than sex or employment status

Difference in Assignment Employee Status As of April 1, 2018 Subject to the exception below, a temporary help agency cannot pay an assignment employee who is assigned to perform work for a client a lower rate of pay than the rate paid to an employee of the client when:

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(905) 361-0268 (800) 668-8906

• They perform substantially the same kind of work, in the same establishment, their work requires substantially the same skill, effort and responsibility, and their work is performed under similar working conditions.

• Exception: Even if an assignment employee and an employee of a client are doing “equal work”, the assignment employee can be paid a lower rate of pay if the difference is due to any factor other than sex, assignment employee status, or employment status.

Reprisals An employer or anyone acting on their behalf is prohibited from reprising against an employee. A reprisal is when an employer or person acting on their behalf, intimidates, dismisses, or otherwise penalizes an employee or threatens any of the above because the employee:

• Asks the employer to comply with the ESA • Makes inquiries about his or her ESA rights • Files a claim • Attempts to exercise or exercises an ESA right • Gives information to an Employment Standards Officer • Asks about the rate of pay paid to another employee to determine if an employer is

providing equal pay for equal work • Discloses their rate of pay to another employee to determine if an employer is providing

equal pay for equal work • Participates in an ESA proceeding • Is or will become eligible to take a leave, intends to take a leave, or takes a leave • Is subject to a garnishment order

Investigation & Inspection Process Investigations are usually started in response to a complaint, on an approved form, by an individual. Inspections are generally conducted on a proactive basis. Role of Employment Standards Officer:

• Assigned to investigate claims or conduct proactive inspections • Can investigate and conduct inspections by telephone, written correspondence, visit

employer’s premises or require workplace parties attend a meeting. • Bound by rules of natural justice: Duty to act fairly and impartially.

Enforcement: Employers who contravene the ESA can be ordered to:

• Comply with the ESA • Pay an employee the amount of wages owing (with some restrictions) • Reinstate and/or compensate an employee in certain cases (e.g Reprisals or Leave of

Absence contraventions [no maximum dollar amount]). • Pay an administrative cost. • Pay an escalating monetary penalty (Notice of Contravention).

o $350 per affected employee for 1st offence. (as of Jan. 1, 2018) o Can increase for 2nd and 3rd offences.

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(905) 361-0268 (800) 668-8906

Provincial Offences Act Part I Certificate of Offence: $295* Part I Summons: Fine up to $1,000* (requirement to attend court). Part III Prosecutions:

– Individuals: Fines up to $50,000* and/or jail term up to 12 months. – Corporations: Fines up to $500,000*.

• Name of anyone convicted of an offence and information about the offence, can be published on the internet.

* Plus Victim Fine Surcharge

For More Information Ontario Restaurant Hotel & Motel Association (ORHMA) Phone Number: 905-361-0268 / Toll Free: 1-800-668-8906 E-Mail Address: [email protected] Website: www.orhma.com Employment Standards Information Centre: Phone Number: 416-326-7160/ Toll Free: 1-800-531-5551 (Information is available in multiple languages) Tools: Ontario.ca/EmploymentStandards for more information on employer duties and employee rights under the ESA. Ontario.ca/ESAguide for Your Guide to the ESA, 2000. Ontario.ca/ESAtools for the Public Holiday Calculator, Employment Standards Workbook and other interactive tools and calculators. Ontario Government e-Laws website: Ontario.ca/laws

mailto:[email protected]

http://www.orhma.com/

employment standards in ontario s hospitality … · 2 ontario restaurant hotel & motel...

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