Key Issues of the ESA
What follows is a brief review of your obligations under the Employment Standards Act on the key issues of overtime, uniforms, tips, dine-and-dash, cash shortages, vacations, split shifts, call-in, statutory holidays and breaks.
Overtime must be paid to all employees who are not employed as managers, at the rate of time-and-a-half after eight hours (in a day) and double time after 12 hours (in a day), unless an averaging agreement is in place. Similarly, without an averaging agreement, weekly overtime is payable at time-and-a-half for all hours worked over 40 in a week. This applies even if the employee never works more than eight hours in a day, but note that only the first eight hours worked each day are used to calculate total hours for weekly overtime. For more information about overtime pay, see the Employment Standards Branch Factsheet and this go2HR article regarding the same topic.
The need to pay overtime may be limited when an averaging agreements is in place. Note that an averaging agreement must be in writing, must be signed by the employer and the employee in advance of the schedule starting, and must be for a specified length of time. For more information about averaging agreements, see the Employment Standards Branch Averaging Agreements Factsheet and this go2HR article regarding the same topic.
Uniforms must be provided by the employer at no cost to the employee. The employer must either clean the uniform or make allowance for the employee to clean the uniform (such as a payment on each pay cheque to cover the cost of soap and laundry). For more information concerning rules about workplace uniforms, see this go2HR article regarding this topic.
Tips are not wages. Employees must be paid at least minimum wage in addition to any tips they receive. The ESA prevents employers from withholding, deducing or requiring an employee to return or give tips to the employer. The ESA prohibits an employer from using tips to cover the cost of doing business (paying for breakage, letting employees work for tips rather than wages, etc.).
If a customer leaves without paying, that is a regrettable cost of doing business. An employee cannot be asked to cover the bill.
Employees cannot be compelled to make up cash shortages, and cash shortages cannot be deducted from pay cheques or tips.
Employees are entitled to four per cent of their gross annual wages in vacation pay and no fewer than two weeks off for vacation time, after they have completed one year of service. After five years, they are entitled to six per cent of their gross wages and three weeks’ leave. For more information concerning rules about vacations, see this go2HR article regarding this topic.
All split shifts must be completed within a 12-hour time frame. For more information on this topic see the Employment Standards Branch Guidelines Manual.
Employees who report for work are entitled to a minimum of two hours’ pay, even if they do not perform any work and are sent home because they are not needed.
Employees must be paid statutory holiday pay if they worked 15 or more of the 30 days prior to the statutory holiday. If there is an averaging agreement, the employee becomes entitled to statutory holiday pay if they worked at any time within the 30 calendar days preceding the holiday.
If an employee is required to work on a statutory holiday, they are entitled to 1.5 times their regular rate of pay for the first 12 hours worked and double time after 12, plus an average day’s pay. If the employee is entitled to statutory holiday pay, but the holiday falls on his or her day off, he or she is entitled to a day’s pay. Employees who did not work 15 of the previous 30 days would receive regular wages if they work, and no additional wages if they are off that day.
For more information about statutory holidays, see the Employment Standards Branch Statutory Holidays Factsheet and this go2HR article regarding this topic.
An employee must be given a one half-hour meal break after working for five hours. If the employer expects the employee to stay at the work place and interrupt the break if a customer needs service, the full half-hour must be paid.
For more information on these and other employment standards, visit the Government’s Guide to the Employment Standards Act.
Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.