Know the Employment Standards Act

Most businesses in Durham are governed by the terms of the Employment Standards Act (ESA), which sets out the minimum working standards for employees in Ontario.  Some businesses (e.g. banks, telecommunications, railroads) are covered by the Canada Labour Code.  This column is just about the ESA. 

Do you have an up-to-date copy of the ESA readily accessible to you at your business?  If not, why not?  The ESA is the basic rulebook for you as an employer.  You wouldn't spend thousands at a casino at a game where you didn't know the rules, so why spend thousands on employees when you dont know the rules of employment?

I am surprised at employers lack of awareness of their obligations.  I once met with a client who had a family business in the retail sales industry.  His business had been around for over 50 years, but he was not aware of the minimum wage.  Another client had an written employment contract (a good idea) that required the employee to work a minimum 55 hours per week without overtime (bad idea).  Not surprisingly, after the employee ceased his employment, he made an overtime claim, and won.

Many employers find it hard to read and understand the ESA.  That is understandable, as it is somewhat convoluted the regulations made under the ESA, which are necessary reading to fully understand the Act.  The Ministry of Labour publishes Fact Sheets and an Employers Guide, all of which are available on their web site, located at www.gov.on.ca/LAB/es/ese.htm. 

I prefer to refer directly to the Act.  While the Ministry guidelines can be helpful, they are not the law: they are the Ministrys interpretation of the law.   (Do you always agree with Revenue Canadas interpretation of he Income Tax Act?)

It is essential that every policy and everything you do at your business complies with the ESA.  Its not hard to accomplish this, but it does take some initial learning and some annual updating.  I have a standing order with Carswell (1-800-387-5164) for a collection of Ontario employment-related statutes.  That means that every year they send me a book with the updated Acts (ESA, Humand Rights Code, Workplace Safety, Occupational Health & Safety etc.)  along with any updates through the year.  Its worth the expense.

If you dont comply with the ESA, you could be subject to a complaint, an investigation, an order against you and, if you appeal, a hearing in Toronto.  I dont advise you to go it alone.  Get help from an employment lawyer as soon as you are aware that there has been a complaint.  If you wait until there is an order against you and you want to hire a lawyer to appeal, you are (1) spending a lot more money and (2) maybe too late to do any good.  Your best chance of avoiding an Order against you and extensive fees is to professionally deal with the complaint at the early stages.

Heres the catch.  Even of you comply with the ESA completely, you can still be sued.  Next month, Ill tell you why.