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Posts tagged: Employment Standards

Recent changes to Employment Insurance benefits

By , December 11, 2017 10:00 am

In November of this year, Employment and Social Development Canada confirmed that new Employment Insurance (“EI”) parental, maternity and caregiving benefits will come into force effective December 3, 2017. We previously blogged about these proposed changes when the new EI benefits were being proposed in the federal budget. The changes that have been announced are detailed below.

Parental Benefits

Parents, including adoptive parents, will have the following options at the time of their application:

  • Standard benefit: 35 weeks of EI parental benefits over a period up to 12 months at 55% of average weekly earnings, up to $543 per week;
  • Extended benefit: 61 weeks of EI parental benefits over a period up to 18 months at 33% of average weekly earnings, up to $326 per week.

Parents receiving EI parental benefits before December 3, 2017 will not be eligible to make the above choice.

Maternity Benefits

Women will be able to claim EI maternity benefits up to 12 weeks before their due date. Currently, women can claim these benefits up to 8 weeks before their due date. This change affords expectant mothers more flexibility when it comes to planning their maternity leave.

Caregiving Benefits

Caregivers providing care to a critically ill or injured adult family member will now have access to up to 15 weeks of benefits. These benefits are entirely new, and can be combined with the existing compassionate care benefit which is available for caregivers who are providing care for family members who are facing significant risk of death.

Additionally, immediate and extended family members of a critically ill child will have access to up to 35 weeks of benefits. This benefit was previously only available to parents of the ill child. Parents still have access to these benefits but may now share them with other family members.

Interplay between EI amendments and changes to the ESA

Although EI amendments apply to all contributors to the EI program, provincially regulated employees could not be entitled to leave periods that correspond to the new EI benefit period unless the provincial employment standards was amended to reflect those same periods.

On November 22, 2017, the Ontario government passed the Fair Workplaces, Better Jobs Act, 2017 (also known as “Bill 148”), which, among other things, amends the leave provisions in the Employment Standards Act.

Effective December 3, 2017, entitlement to parental leave will increase from 35 weeks to 61 weeks for employees who take pregnancy leave, and from 7 weeks to 63 weeks otherwise. Employees will not be eligible for this increased leave entitlement with respect to children who were born or came into their care before December 3, 2017.

Furthermore, employees with six consecutive months of service will be entitled to a critical illness leave of absence of up to 17 weeks to provide care and support to a critically ill adult family member.

A No Cost Process for Claiming Damages If You Are Fired for Asserting Your Employment Rights

By , August 25, 2017 11:54 am

If you are punished for asking your employer to comply with the Employment Standards Act there is a no-cost complaint process available to you. In particular, you can file a complaint with the Ontario Ministry of Labour and an Employment Standards Officer will investigate your claim at no cost to you.

Riverdale Hospitality Inc. v. Markos Tadesse Essayas, 2017 CanLII 8340 (ON LRB) is a recent case that provides a good example of how a short-term employee earning a low wage can pursue their rights through the Ontario Ministry of Labour instead of through the courts.

The Case

Markos Essayas was an employee for Riverdale Hospitality Inc, a valet and limousine service. He was hired on October 4, 2015 as a valet driver and earned $11.25 per hour. At the time he was hired he was told that he would be a full-time employee and would work approximately 40 hours per week. In October and November Mr. Essayas asked to be paid overtime and received a cheque for overtime pay within a week of his request. However, when Mr. Essayas asked for overtime payment in December 2015, his hours began to drop. His weekly hours from October 12 to December 27 were 40, 38, 48, 48, 47, 54, 48, 37, 48, 8, and 12.  When he asked for overtime in December 2015, he only received a cheque dated January 15, 2016 which was included with his letter of termination dated January 11, 2016. Mr. Essayas argued that the last two weeks were the period of reprisal, which ultimately led to his termination.

The Decision

Section 74 of the Employment Standards Act prohibits employers from penalizing employees who ask their employer to comply with the Act. Under Section 74, there is a reverse onus clause which means the employer must prove that they did not punish the employee. In this case, the employer did not discharge its onus that it acted without reprisal. The Board rejected the employer’s explanation for the dramatic reduction in Mr. Essayas’ hours. The Board refused to accept the employer’s evidence that Mr. Essayas was not a full-time employee, that he received two disciplinary warnings, and that he intended to quit when he did not attend a mandatory training program. The Board also rejected the evidence that the employer had a “seniority list” to determine which employees would be scheduled during slower periods of business.

The Board awarded Mr. Essayas $765.00 for his wage loss (i.e what he would have earned had he been scheduled for shifts in December). They also awarded Mr. Essayas $495.00 for lost income to search for new employment and $500.00 for the breach of the reprisal provisions of the Act. The Board declined to award damages for pain and suffering.

In this case, it would not have made any economic sense for Mr. Essayas to commence a legal action as legal costs and disbursements would likely have exceeded the amount recovered.

Filing a complaint under the Employment Standards Act is not the best legal option in all cases. In some cases a better option is to commence a legal action in the courts.

If you are not sure of your legal rights and what legal options are available to you then you can speak to an employment lawyer about your case.

If you would like to speak to a lawyer at MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

 

Significant Changes to Employment Standards Coming to Ontario

By , June 2, 2017 8:36 am

On June 1, 2017, the Ontario government introduced legislation to amend Ontario’s Employment Standards Act, 2000 (the “ESA”) and the Labour Relations Act, 1995.

The Fair Workplaces, Better Jobs Act, 2017 (the “Act”), builds on the Changing Workplaces Review Final Report which was released on May 23, 2017 after two years of consultations, including with our law firm.

The Act proposes several significant changes to employment standards in Ontario including increased minimum wage, paid sick days, and increased vacation.  Specifically, the changes set out in the Act are:

  • increasing the minimum wage to $14 per hour on January 1, 2018 and $15 per hour on January 1, 2019 – the lower rates for liquor servers and students will be increased by the same percentage as the general minimum wage;
  • entitling all employees to three weeks of paid vacation after five years of service with the same employer – currently the minimum is two weeks;
  • entitling all employees to 10 personal emergency leave days per year, including two paid days – currently only those who work for employers of 50 employees or more have personal emergency days and there are currently no paid sick days;
  • ensuring that casual, part-time, temporary, and seasonal employees are paid the same as full-time employees when doing the same job for the same employer;
  • imposing sanctions on employers that misclassify employees as “independent contractors;” and
  • amending scheduling rules so that employees have the right to (i) request schedule changes without fear of reprisal and (ii) refuse shifts where the employer only gives four days’ notice.

Many of the changes would see precarious workers in Ontario experience as increase in compensation and paid time off work. We expect the paid sick days and scheduling rules to have a positive impact on female workers, in particular.  However, currently there is a significant gap between the rights contained in the ESA and the experience of workers.  The government has announced that it will hire up to 175 more employment standards officers to assist with education and enforcement of the ESA.  This will be the true test of whether these changes have a positive impact on Ontarians. Without increased compliance, the proposed changes are simply political posturing.

If you would like to speak to a lawyer at MacLeod Law Firm about employment standards, you can reach us at [email protected] or 647-204-8107.

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

 

Keeping Tips in the Servers’ Pockets – New Protections Under the Employment Standards Act

By , April 12, 2016 11:19 am

For servers, tips generally form a significant part of their income. Pooling tips is a common practice in the restaurant industry whereby a server is required to contribute a certain portion of his or her tips into the “pool”. The tips are then redistributed to other employees. In some cases, the restaurant also takes a cut of those tips, which can seem unfair.

Under Bill 12, Protecting Employees’ Tips Act (“the Act”), which amends the Employment Standards Act (“ESA”), as of June 10, 2016, an employer is prohibited from withholding, making deductions from or causing an employee to return his or tips or other gratuities.

What are tips and gratuities?

Under the Act, “tip or other gratuity” means:

  • A voluntary payment left for an employee by a customer of the employee’s employer whereby a reasonable person would be likely to infer that the customer intended or assumed that the payment would be redistributed to an employee or employees
  • A voluntary payment made to an employer by a customer whereby a reasonable person would be likely to infer that the customer intended or assumed that the payment would be redistributed to an employee or employees
  • A payment of a service charge or similar charge imposed by an employer on a customer in such circumstances that a reasonable person would be likely to infer that the customer intended or assumed that the payment would be redistributed to an employee or employees

New Tip Pooling Rules

An employer is permitted to pool tips and redistribute the tips to other employees, but the employer is not allowed to share in those tips; meaning that the employer can no longer take a cut of a server’s tips or gratuities. There are exceptions for sole proprietors, partners, directors and shareholders if they regularly perform to a substantial degree the same work performed by:

  • some or all other employees who are part of the tip pooling;
  • employees of other employers in the same industry who commonly receive or share tips or other gratuities.

If servers are unionized employees and these new protections conflict with the current collective agreement, the collective agreement will prevail until the expiry of that collective agreement.

If you have any questions about what your employer can and cannot require you to do with your tips, please contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to assist you.

 

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

No Vacation for a Year? Understanding your Right to Vacation Days

By , March 21, 2016 10:00 am

You were offered a new position.  You negotiated for a great salary and many vacation days. When you start working, your employer tells you that although your contract says that you are entitled to many vacation days, you cannot take any vacation for the first year. Is this legal?

Vacation Entitlement and the Employment Standards Act

The Employment Standards Act (ESA) is the legislation that creates employees’ rights to paid vacation. The ESA provides that an employee must receive at least two weeks’ paid vacation per year.  However, there is a waiting period.

All employers have a ‘vacation entitlement year’. This is the period of time over which employees accrue vacation that they can take in the next year.  The idea is that an employee must earn the vacation by working – accruing the vacation days.

The majority of employers use a calendar year as the vacation entitlement year. Some chose another timeline.  Either way, if an employee starts working before the vacation entitlement year begins, she accrues/earns vacation for the partial year.  This is called the stub period. These vacation days may be taken after the stub period ends. The remainder of the employee’s vacation days cannot be taken until after the end of the vacation entitlement year.

An Example

Bob’s employer uses the vacation entitlement year of January 1st to December 31st. Bob is hired on December 2nd and his contract says his is entitled to three weeks’ vacation.  Technically, Bob accrues vacation at .25 days per month. His ‘stub period’ is from December 2nd to December 31st.  So, in Bob’s first year of employment, he can only take .25 days of vacation – even though his contract says he should receive three weeks’ vacation.

How to avoid this Situation 

Some employers will allow employees to take vacation right away, despite what the ESA says.  Other employers, will amend a contract to allow an employee to take vacation in the first year.

It is important to understand your contract, and to understand that law prior to signing an employment contract. Spending an hour with an employment lawyer reviewing each term of a contract or offer letter will ensure that you know the legal implications of each clause in the document and may lead to changes to the offer that benefit you. If you have an employment contract that you would like reviewed, a lawyer at MacLeod Law Firm would be happy to assist you. Please contact us at [email protected] or 647-204-8107.

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

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