Area of Law: Employment Law
Answer Number: 584
Basic employment rights and obligations for all employeesRegion: Ontario Answer Number: 584
Basic employment law is set out in the Employment Standards Act. The Act sets out an employer’s responsibilities and an employee’s rights. The Employment Standards Act does not apply to all workers, and has special rules for some workers. It will not apply to you if you are covered by other laws. If you belong to a union, generally the proper form is to grieve a violation of the Act.
Employment Standards Act applies to employees not independent contractors
The Employment Standards Act only applies to people who are considered to be employees. It does not protect workers who are considered independent contractors. You are generally considered to be an employee if you have a supervisor who can tell you what duties to perform, how they should be done, and if you work only for that employer and are not genuinely in business for yourself. For example, you may be considered an independent contractor if you do not have a supervisor, if you do your work in a facility rented by you, and if you are being paid on a task or project basis.
To determine if you are an employee or an independent contractor, you should carefully consider the following factors:
- Employees usually work at the employer’s place of business, while independent contractors may work from their own offices.
- Employees are paid regularly, while independent contractors are usually paid for finishing a job and must provide an invoice.
- Employees usually work regular hours and days, while independent contractors decide when they will work.
- Employees usually work for one employer. Independent contractors, on the other hand, may work with one or more companies at a time, and they may have many clients or customers.
- Employees are usually hired for an ongoing position or a set period, while independent contractors are usually hired to finish a certain project.
- Employees usually use tools or equipment provided by the employer, while independent contractors usually bring their own tools or equipment.
- Employees usually cannot hire someone to do their job, for example if they have to be away. Independent contractors can usually either hire their own employees, or can arrange for a subcontractor to do the job.
- Employees have their income tax deducted from their wages and submitted by their employer to Canada Revenue Agency, while independent contractors are responsible for calculating and submitting their own income tax, and can deduct business expenses from their revenues.
Employees not covered by the Employment Standards Act
Even if you are considered an employee, you might not be covered by the Employment Standards Act. If you work for the federal government, an airline, or a bank, you are usually considered an employee under federal authority, and you are covered by the Canada Labour Code and not by the Employment Standards Act. Although there are some differences between the Canada Labour Code and provincial laws, they are quite similar. The Government of Canada provides a complete list of federally regulated business and industries.
Professionals and students training to be professionals such as physicians, lawyers, engineers and teachers, as well as sales people who earn commissions from sales made outside their employer’s place of business, are not covered by the Employment Standards Act provisions dealing with minimum wage, hours of work, overtime, vacations and statutory holidays.
Rules for union members
If you are a member of a union, there are special rules that apply to you. Usually, the union will have an agreement with your employer that sets out the rules that apply to your employment, and states that a violation of the Employment Standards Act will be grieved. The laws for unionized workers are very different from the laws for non-unionized workers. If you are a member of a union, you can contact your union representative or the local union office for more information about the rules that apply to you.
Employees with employment contracts
In addition to employment legislation, an employment contract can affect and clarify the rights and obligations of both employers and employees. In the absence of a written employment contract, there are issues that may cause confusion or problems later on in the relationship. Therefore, many employers enter into employment agreements with their employees. The contract may include such things as:
- an obligation on the part of the employee to give a certain amount of notice before quitting,
- an obligation on the part of the employee to keep certain information confidential,
- a requirement that the employer give the employee more notice than the Act requires before being fired,
- a right for the employee to take a longer paid holiday than the Act stipulates.
Basic employee responsibilities
Basic responsibilities of most employees include:
- Showing up for work on time
- Working for the required hours
- Behaving honestly
- Following the employer’s instructions
- Keeping trade secrets
- Doing the job to the best of one’s ability
Basic employer responsibilities
The employers’ responsibilities are more complicated. Federal and provincial laws provide for employment standards for most working conditions. Ontario employers must provide a copy of the Ministry of Labour’s poster to each employee within 30 days of the employee’s start date.
Areas covered include things such as minimum wages, hours of work, rest periods, eating periods, overtime pay, paid public holidays, vacation with pay, pregnancy or parental leave, and termination or severance notice and pay. However, many of these are minimums, and an employee may be entitled to additional protection either in common law or pursuant to an employment contract.
Employees with disabilities
Ontario’s Accessibility for Ontarians with Disabilities Act (AODA) sets out a process for developing accessibility standards in the workplace. Employers are now legally required to make their employment practices accessible to meet the needs of both current employees and job applicants with disabilities.
Who do the AODA standards apply to and when?
Which rules a business must follow depend on the size and type of the organization. Generally, however, the standards apply to all businesses, including non-profits (except where stipulated), which employ full-time, part-time, seasonal and contract workers. The rules came into effect as follows:
- January 1, 2016 for businesses with 50+ employees
- January 1, 2017 for businesses with 1-49 employees
Volunteers and independent contractors should not be counted when determining a business’s number of employees, however, these individuals must still be covered under the new accessibility standards.
Self-employed people who do not have employees are exempt from the new rules.
To meet the Accessible Employment Standard requirements, employers must comply in the following main areas.
For all employees:
- Hiring. Employees and the public must be notified in the hiring process that the needs of people with disabilities will be accommodated.
- Workplace information. Any information an employee needs to perform their job, and any general information available to all employees must be in an accessible format (i.e. braille, audio, large print) if an employee requests it, including information about emergency workplace procedures.
- Talent and performance management. The needs of employees with disabilities must be considered in all performance management or career development processes, such as performance reviews and job promotions.
- Communicate accessibility policies. Current and new employees must be told about the business’s policies to support people with disabilities.
Employers with 50 or more employees:
In addition to the above requirements, employers with 50 or more employees must comply with the following:
- Accommodation plans. A process for creating accommodation plans for employees with disabilities must be developed and put in writing.
- Return to work process. A return to work process to support employees who have been absent from work due to a disability and require disability-related accommodations must be developed and put in writing. Note that this requirement does not apply if an employee’s injury or illness is covered by the return to work provision under another law.
For more information on the accessibility rules and deadlines, visit Ontario.ca.
Other laws affecting the workplace govern health and safety, human rights, retirement and health benefits, workers’ compensation, and employment insurance, to name a few. For more information, visit the Employment Standards office at the Ministry of Labour website.
You can also view the Ministry Guide to the Employment Standards Act which details the rights and obligations of employees covered under the ESA regarding minimum wage, hours of work, termination of employment, vacation and more.
A criminal record will appear on an employment police check and will affect your ability to get or keep a job. To erase your criminal record, call toll-free 1-800-874-2652 or learn more at Parole Board of Canada. It’s easier than you think.
For legal advice and assistance with employment matters, contact our preferred Employment lawyers, Samfiru Tumarkin LLP .
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