LEGAL RIGHTS BULLETIN: Employee Rights Under ESA

0

Content of the article

The Employment Standards Act (“ESA”) protects the rights of employees and sets out many of the rules that govern the employment relationship of provincially regulated employees.

Content of the article

The ESA covers things like minimum wage, hours of work, overtime pay, holidays, and vacations. Employees cannot “contract out” their rights under the ESA. For example, an agreement to work for less than minimum wage is unenforceable because of the ESA.

The ESA does not require employers to provide “coffee breaks”. An employer is only required to provide a 30-minute unpaid rest period if an employee works more than five consecutive hours. The employer must pay the employee if, during a break period, he performs work or is not allowed to leave the site.

Generally, an employer must pay overtime if an employee works more than 44 hours per week. Overtime pay is 1.5 times the normal rate of pay. Employees can agree in writing to an averaging agreement with their employer where they only receive overtime pay if the average number of hours worked per week during the averaging period exceeds 44 hours.

There are nine public holidays under the ESA, sometimes referred to as “holidays”. Most employees are entitled to take these paid days off. Alternatively, an employee can agree to work on a public holiday for public holiday pay plus premium pay (1.5 times the regular rate of pay) or receive a substitute public holiday.

There are several leaves under the ESA, such as family medical leave and parental leave. ESA leave is job protected. Upon returning to work, the employer must reinstate the employee in his or her same position if it still exists, or in a “comparable position” if it no longer exists. The ESA does not require the employer to pay employees on leave, but they may be eligible for employment insurance.

Content of the article

The ESA contains an anti-retaliation provision that prohibits the employer from punishing employees for requesting or exercising their rights under the ESA.

Under the ESA, many exemptions and special rules apply to certain types of employees. For example, construction workers are not entitled to daily or weekly limits on working hours or notice of termination.

Because of these exemptions and special rules, employees should seek legal advice when considering their rights under the ESA.

Employees or their attorney can file a claim with the Department of Labor who can order the employer to remedy the situation, for example by paying wages due or ordering reinstatement.

If you believe your employer is in breach of the ESA you should seek prompt legal advice as there is a two year limitation period for bringing an action under the ESA.

At CKLC, we provide advice and representation to low-income employees about their CSA rights. If your case is well founded and your family income is low, the legal clinic may be able to represent you. If your family income is not low enough to qualify for our services, we will refer you to the private bar.

Travis McKay, CKLC labor lawyer (www.cklc.ca, 519-351-6771)

Share.

Comments are closed.