Looking for assistance with Employment Law in Canada?
If you're an employer or employee involved in an employment dispute or employment-related legal matter, Clearway is here to help you source competent legal assistance from a qualified Employment lawyer.
Employees and employers in Canada have well-defined rights and expectations that are enshrined by law by the Canada Labour Code, the Employment Equity Act, Canadian Occupational Health and Safety Regulations, and the Canadian Human Rights Act. Each Province and Territory additionally protect employees and employers with their own unique (but similar) rules and regulations governing employment standards. In sum, these legal documents help to ensure that Canada's labor market is well protected and subject to clearly defined rules and regulations.
Unfortunately the breadth and depth of Canada's many employment laws can make this a difficult domain to navigate for both employees and employers. Fear not, Clearway Law is here to connect those in need of employment assistance with one of Canada's many excellent Employment Law experts who can help to make sense of any employment situation.
Broadly speaking, the Federal Government and each of Canada's Provinces and Territories have instituted stringent legal guidelines to ensure that the expectations and remedies for both employers and employees are fair and balanced. Although the individual employment standards regulating each Province or Territory are beyond the scope of this article, the following explores key aspects of the law that impact many of the more common legal issues facing employers and employees alike.
Employment Standards throughout Canada are generally designed to accomplish the following:
Guarantee basic standards relating to compensation, and working conditions.Provide fair conditions for both employers and employees.Foster healthy employee-employer communication in the workplace.Providing an accessible dispute resolution mechanism.Promoting the conditions necessary for a productive workforce.Ensuring that employees are able to balance work and family responsibilities.Promoting and protecting equity in the employment market.
If you'd like to explore further detail about the specific wording of the Employment Standards Act (ESA) in your province or territory you can do so here: Alberta, British Columbia, Manitoba, New Brunswick, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island, Quebec, Saskatchewan and Yukon.
Employers in Canada are generally required to comply with all provisions of the ESA in force for a given jurisdiction, and provide employees with an employment contract that details important agreements relating to responsibilities, term, work hours, wages, and any charges to employees. There are also provisions to protect employees from unreasonable charges being levied during the hiring process, and assurances that certain categories of work benefit from proper licensing.
An employment contract should clearly lay out how you will be compensated in Canadian dollars -- be it hourly or salary. Employers must observe minimum wage laws, and are not permitted to withold or deduct employee pay outside of what is prescribed by law. Pay for the preceding pay interval must be issued at least semi-monthly in Canadian dollars via one of the accepted payment methods laid out in the ESA (i.e. cheque, direct deposit, etc.). Employers must also issue pay statements, and keep accurate payroll records. Certain situations may also require employers to "assign" wages for other purposes including insurance and union dues etc. In the event a work category is subject to gratuities (i.e. restaurants & hospitality), these amounts are generally allowed to be retained by the employee or collected by the employer for redistribution.
Hours of work should be well defined and in compliance with the relevant ESA. Employers are typically not allowed to require more than 40 hours per week from any employee unless overtime is paid, or an agreement is reached regarding alternative working hours. This additionally requires that no more than 8 hours can be worked per day without overtime being paid (unless otherwise agreed), and further requires that employees be guaranteed a certain number of consecutive hours per week free of work (i.e. weekends etc.). Employers must also provide accommodations for meal breaks and/or provide compensation for time worked during required break provisions.
In the event working hours are subject to overtime, such time must be paid in accordance with the ESA (usually 1.5x the hourly wage, unless covered under Emergency provisions).
Employers are also required to observe rules set out by the ESA regarding Statutory Holidays and Vacation. Statutory holidays vary by region, but employers are generally expected to excuse employees from work during legally designated holidays, or provide compensation in lieu (either in the form of other time off, or additional wages). Employees are typically entitled to 2 weeks of paid vacation per year (exclusive of Statutory Holidays) after their first year of work (or 3 weeks after 5 years), however, said vacation must usually be consumed within 12 months of allocation in up to 1 week increments (or more). Vacation allotments are generally not allowed to be reduced by employers for sick time or leave provisions under the ESA.
Most ESA provisions spell out a variety of circumstances where employers are required to provide either paid or unpaid leave for certain hardships. The most common of these is time off for illness or injury. Most employers have some kind of sick leave policy detailed in the employment contract which must meet or exceed the rules set out in the relevant ESA. In general, most employees are at least entitled to 3 days of unpaid time per year, but this amount may be additionally supplemented by days for exceptional circumstances such as family responsibility, compassionate care, critical illness, COVID-19, military service, bereavement, sexual violence, or death of a close family member. If you have need of accommodation due to one of these special categories and are not receiving support from your employer, you'll likely want to consult your local ESA and/or seek counsel from an Employment Lawyer.
Another common category of leave involves maternity or parental leave. Maternity leave is a well protected category that allows expectant mothers to request leave from their employer for a set number of unpaid weeks (usually 17) to prepare to welcome a new child into the family. Federal guidelines allow for either Standard or Extended maternity/parental leave which can be shared between parents for 52 weeks (12 months) or 78 weeks (18 months) respectively. Leave under the federal policy is eligible for Employment Insurance (EI) benefits covering up to 55% of employee wages up to a maximum of $638.00 per week. Employment during Maternity/Parental leave is considered to be continuous and the employee has the right to return to their previous position (or equivalent) at the conclusion of the leave period.
Employers must additionally grant unpaid leave to employees to satisfy civic requirements to perform jury duty. As with maternity and other forms of protected leave, employment during this period is considered to be continuous and employees must continue to receive from employment benefits and entitlements as set out in their employment agreement and the relevant ESA.
In the event of a termination the ESA in your jurisdiction prescribes the employer duties and employee entitlements pursuant to the length of employment. In general, employees with a tenure greater than 3 consecutive months are entitled to receive 1 week of pay (often referred to as severance) at the end of employment (unless provided with 1 week of notice). Employees tenured for between 12 and 36 months are entitled to receive 2 weeks pay or notice -- which increases by 1 week for each subsequent year of tenure (after the 3rd employment anniversary) up to a maximum of 8 weeks. Although not required by law, many employers elect to offer additional benefits in the form of pay or services commensurate with the role (sometimes called gratuitous severance) in order to assist the employee transition. In the event you have been terminated by your employer, it's wise to seek counsel from an employment lawyer to ensure your rights under the ESA are being observed, and your severance package is fair given your tenure, role, and the nature of your employment.
Regardless of whether you're an employer or an employee, in general it's never a bad idea to seek input from an employment lawyer on matters related to employment. The law on employment is in Canada is complex, and a qualified employment lawyer can be a helpful guide as you navigate the nuances of your particular situation. Whether you need help constructing an employment agreement, having difficult conversations, or dealing with a termination, let Clearway Law assist you in finding a competent employment law professional who can ensure the best possible outcome for your case.
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