On September 4, 2001, a new Employment Standard Act (ESA) took effect in Ontario.  It is important for workers to know the minimum standards which apply to them so that they will know what rights they have in the workplace, how to assert these rights and protect themselves against employers violations.  It is particularly important for domestic workers and care givers to know the rights they have under the ESA because of the history of rampant abuse committed by their employers.  Following ESA provisions that domestic workers and caregivers should know:

 

Domestic Workers

            Whether you work as a "nanny", a "caregiver" for children, the elderly or disable, for as long as you are employed directly by a Householder you are a Domestic Worker whose rights are protected under ESA.  A Householder is someone who owns or rents the home where the domestic worker performs her work.

            The ESA protects "nannies", "caregivers", and other domestic workers.  Weather they live-in or live-out of their employer's household, whether they are part-time or full time, and whether they are on temporary permit in the Lice-in Caregiver program (LCP) or have other immigration status.

            Persons who are employed and paid by Business or an Agency (for example and employment agency) to perform homemaking and caregiving services are not considered "domestic workers" under the ESA and are subject to special rules and exemptions.

            INTERCEDE strongly advises that you ensure that you are employed as a "domestic worker" by a house holder and not by a business agency.

 

Hours of Work

            The maximum hours of work are eight (8) hours a day.  Only if you voluntarily agree in writing can an employer make you work more than 8 hours in a day, but only up to a maximum of 13 hours, and no more.  You have right to a 30-minute lunch break after 5 continuous hours of work.

            Remember you have to willingly agree in writing before you can be made to work more than 8 hours in a day.  Remember also that you cannot be made to work more than the 13 hours-maximum, whether there is any agreement in written or not.

            If you agree in writing to work 13 hours a day but want to stop and end such agreement, you can give your employer 2 weeks notice in writing saying that you no longer agree to work those 13 hours and that you now will work the regular  8 hour-day.  If an employer fires you or penalizes you because you are asking for your rights under the ESA, the employer is violating the law and can be the subject of complain with the Ministry of Labour.

            For your own safety and protection, it is advisable to write down or document how many hours you work each day.  Keep a calendar or dated diary of this documentation.

 

Minimum Wage

            As February 1, 2007, minimum wage has increased to $8 per hour (from the previous $7.75).  You can be paid more, but not less than this wage.  Even if you signed a contract to be paid less, your employer will be violating the law if you are paid less than the official minimum wage of $8.  You have the right to be paid for each and every hour of work you do.   Minimum wage will increase to $0.75 per hour annually over three years: $8.75 as March 31, 2008,

Room and Board

            If you are a live-in domestic or live-in caregiver and your employer provides you with room and board, the following are the maximum weekly amounts which can be legally deducted from your gross wages according to the Standard Employment Act.  Deducting more than these amounts constitute a violation of the ESA.

 

Private room:               $31.70 a week

Non-Private room:      $0

Board:                         $2.55 a meal and not more than $53.55 a week

Both room and

Board:                         $85.25 (Private room) a week

                                    $53.55 (Non-Private) a week

            Room and board payments to the employer should not be made unless the live-in care giver and domestic worker have their own private room and are given proper meals.  A private room consists of a room that is somewhat furnished, fit for someone to live in, comes with clean bedsheets and towels, close accessibility to a proper toilet and washing facilities and a proper door with a lock and a key.

 

Statements wages

           

            On or before your payday, the employer is obligated by law to give you a written statement which contains the following:

• - Pay period for which wages are being paid
• - Your wage rate or pay per hour
• - The gross amount of wages owed to you and how it was calculated including overtime and vacation pay
• - The amount and purpose of each deduction
• - Any vacation
• - The amount for room and board
• - The net amount of wages

The employer is legally obligated to withhold deductions for your Income Tax, Canada pension Plan (CPP) and Employment Insurance (EI).  Each month, these deductions taken from your wages, plus the employer's own contributions to your CPP and EI, must be submitted by the employer to Canada Customs and Revenue Agency.  Other than CPP and EI deductions, and payment for your Room and Board, the employer cannot deduct anything else from your wages except under special circumstances provided in law.  No deductions can be made, for example, because your work was "faulty" or your employer lost a property.

 

Maximum hours of work in a week

            The regular hours of work in a week is 44 hours while the maximum hours of work in a week is 48 hours.  This means you cannot be made to work more than 48 hour in one week.

            Only if you voluntary agree in written can an employer make you work more than 48 hours, up to a maximum of 60 hours a week.  Such an agreement must have a termination date.  An employer is violating the ESA if you are made to work beyond the legal maximum of 48 hours in a week without a Witten agreement which you voluntary signed.

            Remember that is illegal for an employer to make you work more than 60 hours a week, even if signed a written agreement to do so.

            You have the right to cancel an agreement to work the maximum 60-hour week or more than the regular 48-hour maximum.  What you need to do is write your employer and give a 2-week notice than you no longer agree to work 60 hours weeks and that you will now only work up to maximum of 48 hours in a week.

 

Overtime

            Once you have worked 44 hours in a week, your employer must pay an overtime rate of one and one-half times your hourly rate for every extra hour you are required to work, up to a maximum of 48 hours.  This means that the maximum hours for overtime that you should work in a week is only four hours (48-4).

            The overtime rate of pay is 1.5 x your hourly rate.  If you are paid minimum wage of $8 an hour, your overtime pay will be $12 an hour, or 1.5 x $8.  For example if you worked the maximum 48 hours in a week, your overtime pay will be $12 x 4 hour s = 48.

            If you are paid more than minimum wage say $9 per hour, your, overtime rate will be 1.5 x $9 = $13.50.  Every hour of overtime will then be multiplied by $13.50 to get your total overtime pay for a week.

            Remember that you cannot be made to work beyond the maximum 48 hours in a week, unless you have voluntary agreed, in writing, to work up to a maximum 60 hours a week, and that such agreement has a termination date.  If you have an agreement to work 60 hours a week, which means you should paid overtime for most 16 hours (60 hrs. - 44)/.  At minimum wage this totals $192 ($12 x 16) of overtime pay.

            You must be paid for all of the overtime hours you work.  The employer is violating the ESA if he does not pay for all your overtime and can be penalized.

            Some employers refuse to pay all of a caregiver's overtime or they make informal agreements to pay a fixed amount such as $50 per week, no matter of many hours of overtime has been worked.  This results in many unpaid overtime hours.  You do not have to pressured into giving any free labour to your employer.  Insist on your right to be paid for each overtime hour your work.  And note in a calendar the number of overtime hours you work each day and each week.

            Your employer may ask you to agree to take time off instead of being paid your overtime.  You cannot be forced to agree to such a mode of overtime payment.  But if you do, the agreement must be in writing, you must get 1-1/2 off for every hour of overtime you worked, and you must be able to take this time off within three months.  If you leave your employment before you were able to take your time off, you should get this overtime pay no later than seven days after the date your employment ended or on what would be your next payday.

INTERCEDE advises that you do not agree to paid in lieu-time for your overtime work unless you have a good reason; and that you report to the Ministry of Labour if you are being forced to sign any agreement by your employer.

 

Overtime Averaging

            INTERCEDE advises caregivers not to sign any agreement to "average overtime" because this will result in gross exploitation and loss of income.  Only if you voluntarily agree in writing can your overtime be averaged up to 4 weeks.  This means that you earn overtime on the average overtime hours earned over the averaging period of 4 weeks, not on the actual number of hours you worked in each week.  Your loss in income is best shown with the following example:

40+60+40+40= 180 hours worked in 4 weeks

180 divided by 4 weeks = 45 average hours per-week

(45 - 44= 1 overtime hour) so

1 hour + 1 hour +1 hour + 1 hour = 4 overtime hours payable

 

            If calculated by the week, your overtime hours would be 0 hour = 16 hours + 0 hours= 16 total overtime hours payable.

            In the above example, you would lose 12 hours of overtime if you had agreement to average your overtime.  As the maximum term of overtime averaging agreement is two years and you and your employer must both agree before it can be resolved, INTERCEDE strongly advises caregivers not to sign any agreements to average overtime

Public Holidays

            You are legally entitled to eight public holidays with pay each year.  These are: New Year's Day, Good Friday, Victoria Day, Labour Day, Thanksgiving, Christmas (December 25), Boxing Day and Family day February 18 (Ontario).

            Qualified employees:

• Can be full-time, part-time, permanent or on limited-term contract or students.
• I doesn't matter how recently you are hired or how many days you worked before the holiday.
• You worked your regularly scheduled day before and after the holiday.

If you did not work your regular workdays before or after the holiday, you can still qualify if you have a good reason such as illness which is certified by a doctor.

            For your public holiday, you get what is called a "holiday pay" and is calculated by dividing your total in the previous four weeks by 20.  This is about equal to one day's pay for a full-time worker.

• 1. You may agree in writing to one of the following ways of getting paid if you work on public holiday:

Get 1.5 x your regular hourly rate (this is your overtime rate or "premium pay") PLUS holiday pay (your total earnings in the previous four weeks divided by 20) for every hour you worked on the public holiday.  Example: You worked 9 hours on Labour Day.  A minimum wage of $8 per hour, your "premium pay" will be $1.5 x $8 = 12 x 9 hours = $108.  If you are paid weekly at $352.00, your total earnings in the last four weeks would be $1408.00 divided by 20 = 70.40, which is your "holiday pay".  For working 9 hours on Labour Day, you are owed "premium pay" plus holiday pay ($108 + $70.40) = 178.40

 

2) Get your regular hourly rate for the hours you worked on the public holiday PLUS get a day off with "holiday pay".  Example: You worked 9 hours on Labour Day.  At minimum wage of $8 x 9 hours equals $72.  You get paid this $72 for the holiday you worked and get another day off with "holiday pay" of $70.40.  For working 9 hours on Labour Day, you are owned regular pay of $72 plus holiday pay of $70.40 = $142.40 plus one day off ( to be taken within three months).

 

            The choice of method of payment for working on the public holiday depends on whether it is important for you to have a day off and rest, on the number of hours you worked on the holiday and whether the total pay amount is bigger or smaller.  If a public holiday falls on your vacation week, you do not get an extension of your vacation but you must be paid "holiday pay" for the day.

 

Vacation

            After you have worked 12 months with your employer, you are entitled to two weeks vacation with pay.  I f you have not taken any vacation and you leave your job, you are owed 4 per cent of our gross wages.  These gross wages should include all the wages you were paid from your first day of work, any wage still owing, and all overtime pay.

            Even if you are working part-time, or if you did not complete one year of work, you are entitled to vacation pay at the same 4 per cent of gross wages.

            Your vacation can be taken in one or- two-week blocks.  Only if you agree in writing can you be made to take your vacation in less than the one-or two-week blocks.  You have the right to refuse to divide up your vacation into single days and refuse to sign any agreements to this effect.

            While it is the employer who has the discretion to decide the time when you can take your vacation, you should still be able to negotiate your preferred vacation weeks.

 

"Sick" Leave

            The ESA does not provide for "sick leave" to anyone.  The closest to a sick leave is Emergency leave.  Unfortunately, to qualify for "Emergency Leave" in the ESA, a person must be working in the organization that employees fifty or more people.  However, it does not mean that you cannot negotiate with your employer for paid "sick or emergency leave" because of personal illness, injury any other medical emergency or urgent matter happening to yourself or to your significant others.  Try to negotiate a written agreement for least 10 days of paid "sick or emergency leave" within a year.  When you need to take a "sick or emergency leave", be sure to inform your employer or obtain a medical certificate to support your absence from work.

 

Termination Pay

            After you have worked three months for the same employer, you have right to one week of notice in writing if your employer no longer wants to continue your employment.  If no written notice was given, then you have the right to be paid one week of termination pay which should be equal to your regular one week's salary.

            If you have been employed for a longer period, you should receive termination pay equivalent to the number of weeks' notice you are entitle to as follows:

Employed more than one year and less than 3 years                  2 weeks of witten notice or termination pay

• More than 3 years and less than 4 years 3 weeks of written notice or termination pay
• More than 4 years and less than 5 years 4 weeks of written notice or termination pay
• More than 5 years and less than 6 years 5 weeks of written notice or termination pay
• More than 6 years and less than 7 years 6 weeks of written notice or termination pay
• More than 7 years and less than 8 years 7 weeks of written notice or termination pay
• 8 years or more 8 weeks of written notice or termination pay

 

Note that the domestic worker does not have any obligations under the ESA to give any notice to employer if she decides to leave her employment.  Although she may do so as matter of courtesy or practicality.

 

Record of employment

            If you leave your job, your employer must provide you with a Record of Employment (ROE).  A Record of Employment will indicate how many weeks you have worked and how much you have earned.  It is very important that you get this document and keep it in a safe place because you will have to include your ROE in your application for permanent residence when the time comes.   The ROE is proof of the length of time that you worked with an employer.  It is not a letter or note written by your employer, it is an official on-page document which your employer must obtain from the office of Human Resources Skills and Development Canada (HRSDC) and which must be filled completely and signed by the employer.

            Your employer cannot refuse to give you ROE.  If you are finding difficulty in getting a ROE contact the local HRSDC office and request an Investigation and Control Official to assist in obtaining a ROE from your employer.

            All employers in Ontario, including employers of workers, are required to keep written records about each person they hired.  These records must be available for inspection and must be kept for up to three years.  They should also include the employee's name, address, starting date, number of hours worked each day and week.  They should also include employee's date of birth if the employee is under 18 years old, all vacation time and time taken by employee information contained in the statement of earnings and vacation statement, and all record of pregnancy, parental or emergency leave.

            Under Canadian law, your employer must register with Canada Revenue Agency (CRA) and fallow its rules, get an employer number and make deductions from your payroll and send to Canada Revenue Agency.  Thus at the end of the year, the Employer must give a correct T4 which you need in order to file your income tax return.

            Under Ontario law, anyone who employs a full time domestic worker must register with the Workplace Safety and Insurance Board (WSIB).  If you have an accident at work, you have right to worker's compensation.  Be sure to immediately see a doctor for certification of what happened and make a report about the incident to WSIB at tel. 416-344-1000 or 1800-387-0750.

 

Contracts or Employer-Employee Agreements

 

            Any contract or employer-employee agreement that waives or violates any of the provisions of the Employment Standards Act is considered void except when it provides a greater benefit to the employee.  For example, a contract that pays less than the minimum wage is void but a contract that pays more than the minimum wage is valid.  It has been noted that certain domestic workers/caregivers who applied to the Live-in Care Giver program were made to sign  employer-employee agreements outside Canada which violate provisions of Ontario Employment Standard Act. 

INTERCEDE advises those LCP workers to seek assistance to ensure that their rights under the ESA are protected and not violated in their agreement contracts.

 

How to File a Claim for ESA Violations

            If your employer breaks the law, you have the right to file a complaint with the Ministry of Labour.  If the Ministry of Labour finds your complain valid and believes your rights have been violated, your employer will be instructed to pay the money that you are owed.   Your employer could also be ordered to take your back as an employee (it is your choice if you want to go back), or compensate you if you were to let go or treated badly because you exercised your rights.

            Depending on what type of violation your employer has done, your time period to file claim could be between six months to one year.

            If you want to file a claim, we recommend that you come to INTERCEDE to have one of the counsellors assist you.  These are the steps to follow when filling a claim:

• 1. Figure out which part of the Employment Standard Act your employer has violated.
• 2. Write a letter to your employer; asking he/she to pay you the money you are owed. This letter is called a "demand letter". At INTERCEDE we have a form to fill out, that is considered a substitute for the demand letter. You can use this form instead of writing a demand letter.
• 3. Make sure to make a copy of your letter/form for yourself, and then mail the form or the letter by registered mail to your employer.
• 4. Take a copy of your demand letter/form to the Ministry of Labour, Employment Practices Branch (Call 416-326-7160 / 1800-531-5551 or http://www.gov.ca/labmain.htm)
• 5. At the Ministry of Labour's office you will be asked to fill out an official claim form which will start the Ministry's claim process.

 

Calendar

Your claim will be stronger and have a better chance of being won if you have a documented calendar of the ESA violations committed by your employer.  On this calendar make note of the tasks you performed each day, the times you started and ended work, your hours of overtime, the wages you received, etc.

 

Expect the following after your file your claim:

• Once the Ministry of the Labour receives your claim, an Employment Standards Officer will investigate it. The investigation usually takes a long time.
• A few weeks after filing the claim you should receive a letter from the Ministry of labour. This letter is a confirmation that your claim was received, and it will inform you about the procedure that will be taken.
• The Employment Standards Officer will arrange a meeting with you and your employer. This meeting is called "A Fact Finding Meeting".
• You can attend the meeting on your own, but it is better if you bring someone with you. You can ask an INTERCEDER Counsellor to accompany you. If you have trouble with English, bring a friend, family member, or find an interpreter to interpret for you.
• Remember to bring all of your documents with you.
• If the Employment Standards Act Officer agrees with your claim, "an order" can be issued against your employer if the employer does not voluntarily pay the wages or comply with the officer's decision.
• If you disagree with the outcome of your complaint, you have the right to ask for the decision to be reviewed within thirty days.

 

 

Contact Information

      For any questions regarding the ESA, call the Ontario Ministry of Labour's Employment Standards Act Information Centre at:

416 - 326-7160 or 1-800-531-5551 or visit an office of the Ministry of Labour in person.  To obtain written information or fact sheets about the ESA, call the Ministry of Labour Publications Sales unit at:

1-800-809-4731 or log on to www.gov.on.ca/lab

 

      For any assistance or more information, call or make an appointment with a Counsellor at INTERCEDE tel. 416 - 483-4554 ext. 22, 23, 25.

 

 

 

 

INTERCEDE would like to acknowledge

 the financial assistance

provided by Status of Women Canada

 for its ESA Documentation Project

which produced this information brochure.

 

 

           

Rev. March 14, 2008.