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Lecture 4

LAW 529 Lecture Notes - Lecture 4: Parental Leave, Garnishment, Absenteeism


Department
Law and Business
Course Code
LAW 529
Professor
Kristyn Scott
Lecture
4

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Chapter 6: Employment Standards Act
• The Employment Standards Act (ESA) sets minimum terms and conditions of
employment relating to, among other things: minimum wages; hours of work and
overtime; vacation entitlement; public holidays; statutory leaves of absence; and
termination & severance pay (covered in chapter 13 – next week’s class), etc.
• To some extent this violates the basic principle of freedom of contract. Why?• As a
result:– Parties cannot agree to anything less than the ESA standards.– Parties can
negotiate a greater right or benefit (related to specific entitlement under ESA). Why does
the law impose minimum standards? takes bargaining power away from employer Intro ,
contd
• The ESA applies to most employees (but not to independent contractors).• Specific
exemptions apply to certain industries and jobs (e.g. hours of work and overtime pay
provisions do not extend to managerial and supervisory employees).• Except for few
provisions, ESA binds all employers regardless of size (personal emergency leave from
50 employees).• Enforcement of rights under ESA is a complaint-based process.–
Complaint filed with Ministry of Labour.The complaint filed with Ministry of Labor--
good because you don't need a lawyer. Of course if its a bigger case (class action) than
you would sueGeneral Requirements
Employers must keep accurate records (s. 15). Employers must display Ministry
poster containing key employee rights (s. 2). Employers must establish regular pay
period and payday, and pay the wages (s. 11). Employers must provide Statement of
Wages (s. 12). Employer cannot withhold or deduct any wages payable to
employee, unless it is
(s. 13):
– obliged to do so by statute (e.g. income tax, EI & CPP);– obliged to do so by a court
order (e.g. garnishment order);– authorized by the employee to do so in writing (e.g. a
loan return).garnishment order= if Mr x owes Mr y and Mr y Sues him. Mr Y can go to
the employer to get employer to give him a certain percentageGeneral Requirements
Even with authorization, employer cannot make deduction from wages to cover faulty
work (Hutchins v. Atlantic Provincial Security Guard Services).– Employer needs to pay
wages and then make separate claim (or sue) for damages.• With proper authorization,
employer can make deduction for cash shortage and lost or stolen property ... If the
employee is the only one with access to and total control over cash or property.•
Employers are permitted to recover genuine wage advance or unintentional overpayment.
You cant deduct wages for employee faulty work. You must pay them than sue them.
Employers can deduct if their is a cash shortage ONLY if that person was the only one
with access to and total control of the cashMinimum Employments Standards
Minimum Wages (s. 23):•Applies to full time, part time, casual workers, on an hourly

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basis or on commission, piece rate, flat rate or salary.•General minimum wage: March 31,
2010 regulation – $10.25
•Special minimum wage rates (e.g. students under 18).•Special rules in specific situations
(e.g. commissions).•The 3-hour rule.•When an employee is not paid by the hour, will get
at least the equivalent of the minimum wage for each hour worked:
– Erica worked 40 hours in one week and earned $280 in commissions. Erica earned
$7.00 per hour ($280 divided by 40).– Employer owes Erica $3.25 more per hour (40
hours x $3.25 = $130.00).Minimum employment Standards, Con’t
Hours of Work (ss. 17-21): •Maximum hours of work not the same as “overtime” (44
hours). •Maximum number of hours that an employee is required to work is 8 hours in a
day and 48 hours in a week•Exceptions: – Written “excess hours agreements” (agreement
to vary):
• to vary the statutory maximum daily hours – Employer gave information, and the
employee/union agreed.• to vary the statutory weekly hours – same conditions + Director
of Employment Standards approvalEmergencies (s. 19): "only so far as is necessary to
avoid serious interference with the ordinary working of the employer's establishment or
operations".Example: natural disaster, fire, flood NOT rush orders, absenteeism, or
seasonal busy periods Hours of Work (ss. 17-21), cont’d :•Employees are entitled to
have a certain number of hours free from work:– 11 consecutive hours off work each
day;– 8 hours off work between shifts;– 24 consecutive hours off work every workweek
or at least 48 consecutive hours off work every two consecutive workweeks.•Employers
must provide a 30-minute eating period after 5 consecutive hours of work (or agree on
two shorter breaks).•Employee must be free from work during the eating period, and
employer is not required to pay for this time. This time is not counted towards hours of
work or for overtime.Employees MUST give 30-minute eating period. even if you ask
they still wont pay you/ still wont count it towards your overtimesMinimum
Employment Standards, contOvertime Pay (s. 22):•Employers must pay overtime pay
(1.5 times regular rate) after 44 hours in a week.– Joe makes $12.00 an hour. Every hour
worked after 44 hours in a week, he must earn at least $18.00.•Person whose work is
supervisory or managerial in character does not qualify for overtime. This is not
always an easy characterization to make:–
•IT professionals also do not qualify for overtime.You can be required to work 48 but
once you work more than 44 hours they have to pay overtime.Overtime Pay (s. 22),
cont’d – Some specific situations:Several kinds of work: Employee who performs
several kinds of work is eligible for overtime pay if at least 50 percent of the hours are
in a job category that qualifies for overtime pay.– Maya worked 27 hours as a
dispatcher(covered)and23hours as a cab driver (not covered). She worked more than 50%
(27∕50) as dispatcher, she is therefore entitled to overtime pay for
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