Ministry of Labour

The Employment Standards

Workbook
Table of Contents
INTRODUCTION ....................................................................................................................... 4
Who is this Workbook for? ...................................................................................................... 4
How is it useful? ...................................................................................................................... 4
How do I use this Workbook? ................................................................................................. 5
1. THE EMPLOYMENT STANDARDS POSTER ...................................................................... 6
Posting Requirements ............................................................................................................. 6
Providing Copies ..................................................................................................................... 6
Employment Standards Poster Checklist ................................................................................ 7
2. PAYMENT OF WAGES AND WAGE STATEMENTS ............................................................ 8
Wage Statement Requirements .............................................................................................. 8
Example of Pay Period............................................................................................................ 9
Wage Statement Checklist ...................................................................................................... 9
3. DEDUCTIONS FROM WAGES ............................................................................................ 11
Statutory Deductions .............................................................................................................. 11
Court Orders/Garnishment ..................................................................................................... 11
Written Authorization .............................................................................................................. 11
Deductions from Wages Checklist ........................................................................................ 12
4. TIPS AND OTHER GRATUITIES ........................................................................................ 13
Court Orders/Garnishment .................................................................................................... 13
Statutory Deductions ............................................................................................................. 13
Tip Pooling ............................................................................................................................ 13
Tips and Gratuities Checklist................................................................................................. 14
5. RECORD KEEPING ............................................................................................................ 15
Specific Rules ....................................................................................................................... 15
Record Keeping Checklist ..................................................................................................... 16
6. HOURS OF WORK ............................................................................................................. 17
Daily Limits of Work .............................................................................................................. 17
Exception to Daily Limits of Work .......................................................................................... 17
Weekly Limits of Work ........................................................................................................... 17
Exceptions to Weekly Limits of Work .................................................................................... 18
Things to Consider ................................................................................................................ 18
Employer Posting Requirements ........................................................................................... 18
Hours Free from Work........................................................................................................... 19
Daily Rest Period Requirements ........................................................................................... 19
Time Off Between Shifts........................................................................................................ 20
Weekly or Bi-weekly Rest ..................................................................................................... 20
Exceptional Circumstances ................................................................................................... 20
Miscellaneous Things to Remember ..................................................................................... 21
Hours of Work Checklist ........................................................................................................ 22
7. EATING PERIODS .............................................................................................................. 23
Non-Eating Period Breaks..................................................................................................... 23
Eating Periods Checklist ....................................................................................................... 23
8. OVERTIME PAY .................................................................................................................. 24
Common Questions About Overtime Pay.............................................................................. 24
 Calculating Overtime Pay...................................................................................................... 25
Time Off In Lieu Instead of Overtime Pay ............................................................................. 31
Overtime Pay Checklist ......................................................................................................... 31
9. MINIMUM WAGE ................................................................................................................ 33
Employees Who Must Receive Minimum Wage.................................................................... 33
Minimum Wage Rates ........................................................................................................... 33
Miscellaneous Standards to Consider ................................................................................... 36
When the Minimum Wage Changes ...................................................................................... 37
Minimum Wage Checklist ...................................................................................................... 37
10. PUBLIC HOLIDAY PAY ..................................................................................................... 39
Public Holidays in Ontario ..................................................................................................... 39
What is Public Holiday Pay? ................................................................................................. 39
How Employees Qualify for Public Holiday Pay .................................................................... 40
The ‘Last and First Rule’ ....................................................................................................... 40
How to Calculate the Four-Work Week Period Before the Work Week With a Public Holiday
.............................................................................................................................................. 40
How to Calculate Public Holiday Pay .................................................................................... 42
How to Calculate Public Holiday Pay Plus Premium Pay ...................................................... 45
Public Holidays on Working Days and Non-Working Days ................................................... 46
“Failure to Work” Rules (Employee Fails to Work Some or All of a Public Holiday Shift) ...... 48
Employees Who Perform both Covered and Exempt Work .................................................. 49
11. VACATION WITH PAY ....................................................................................................... 50
Vacation Time and Vacation Pay ........................................................................................... 50
Key Definitions ...................................................................................................................... 50
Vacation Time ....................................................................................................................... 51
How to Calculate Stub Period Vacation Entitlements ............................................................ 51
Deadlines for Giving Vacation ............................................................................................... 52
Foregoing Vacation ............................................................................................................... 53
Scheduling Vacation Time Earned from a Vacation Entitlement Year.................................... 53
How to Schedule Vacation Time Earned with Respect to a Stub Period ............................... 54
Vacation Pay ......................................................................................................................... 54
Paying Vacation Pay Owing When Employment Ends .......................................................... 56
Vacation and Leaves of Absence .......................................................................................... 56
Contract of Employment Provides Greater Right to Vacation Based on Active Service ........ 57
Employees Must Receive at Least Two Weeks of Vacation Time (and Four-Per Cent in
Vacation Pay) ........................................................................................................................ 57
Vacation Records .................................................................................................................. 57
Vacation Pay Checklist.......................................................................................................... 59
12. TERMINATION AND SEVERANCE .................................................................................. 61
Defining Termination of Employment..................................................................................... 62
Requirements During the Statutory Notice Period: Termination ............................................ 63
How to Provide Notice........................................................................................................... 64
Mass Termination .................................................................................................................. 64
Exceptions to the Mass-Termination Rules ........................................................................... 65
Severance Pay ...................................................................................................................... 65
Wrongful Dismissal ............................................................................................................... 66
13. EMPLOYMENT STANDARDS LAWS CAN CHANGE ...................................................... 68

The Employment Standards Workbook 3

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
 This workbook has been prepared to assist employers and employees in understanding some of their obligations and rights
under the Employment Standards Act (ESA) and its regulations. It does not take the place of the ESA and its regulations and it
should not be considered to offer any legal advice on your particular situation.

INTRODUCTION

Who is this Workbook for?

This Workbook is a tool designed to help Ontario employers and employees understand and
comply with the Employment Standards Act (ESA), which sets out minimum standards that
workplace parties have to follow.

How is it useful?
Thousands of employment standards claims are filed each year. Some of these complaints
result in hundreds of businesses being prosecuted each year in Ontario.
In a Claim or an Inspection
If an employee files an employment standards claim against an employer, the employer will
receive a notice from the Ministry of Labour. Sometimes a claim can be settled without an
investigation. This Workbook may help both employers and employees understand whether a
claim is valid and determine the best way to resolve it.
The Employment Standards (ES) Program conducts proactive inspections. Businesses are
selected using various methods, such as randomly, or based on sector or past claims history,
etc. If a violation is found, a variety of enforcement tools may be issued such as: a
Compliance Order, a Notice of Contravention or an Order to Pay; there could also be a
Certificate of Offence issued or other prosecution initiated under the Provincial Offences Act.
The inspection will generally include a review of the employer’s payroll records, and interviews
with the employer and a number of employees.

The Employment Standards Workbook 4

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
How do I use this Workbook?
The Workbook has been designed with a busy person in mind – you! It addresses some of the
core standards that make up the Employment Standards Act (ESA). The Workbook presents
the information in a clear and understandable way for easy reading.
However, the Workbook does not cover every obligation and right found in the ESA and its
regulations. Consulting Your Guide to the Employment Standards Act, 2000 will provide you
with more complete information on these topics. The guide is available at:
Ontario.ca/ESAguide
The 12 standards covered in this Workbook:
1. The ESA Poster 7. Eating Periods
2. Payment of Wages and Wage 8. Overtime Pay
Statements
9. Minimum Wage
3. Deductions from Wages
10. Public Holidays
4. Tips and Other Gratuities
11. Vacation with Pay
5. Record Keeping
12. Termination and Severance
6. Hours of Work

Additional resources found in each chapter:

• Important links

• Examples and exercises to help you

• Checklists

• Interactive tools
Before getting started, here are some helpful hints:
• We strongly suggest that you refer to the Special Rule Tool, which will help you
determine if your industry or occupation is exempt from a standard or subject to a
special rule. This, and other tools, can be found at Ontario.ca/ESAtools.

• If you wish to speak to someone about your specific situation, please contact our
Employment Standards Information Centre toll-free at 1-800-531-5551 from 8:30 a.m. to
5 p.m., Monday to Friday. Service is available in multiple languages.

• Certain industries are not covered by the ESA, but by federal law. To see a list of
Federally Regulated Businesses and Industries, visit:
http://www.labour.gc.ca/eng/regulated.shtml.

The Employment Standards Workbook 5

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
1. THE EMPLOYMENT STANDARDS POSTER

Posting and distributing the poster shows employees that employers are aware of
the law and their legal obligations. It also lets employees know what their rights are.

To help ensure that employers understand their obligations and employees know their rights,
the Minister of Labour has prepared and published a poster entitled Employment Standards in
Ontario (also known as the Employment Standards Poster). All employers covered by the ESA
in the province (excluding the Crown) must display this poster in the employer’s workplace.
Employers must also provide all of their employees who are covered under the ESA with a
copy of the poster.
The poster contains a brief summary highlighting the main standards of the ESA, including:

• hours of work
• rest periods
• overtime pay
• minimum wage
• payment of wages
• vacation time and pay
• public holidays
• leaves of absence from work
• termination notice and pay
• reprisals

Posting Requirements
The employer must display the poster in the workplace where it is likely to be seen by
employees. If the majority language in the workplace is something other than English and the
ministry has published a version in that language, the employer must post a translated version
next to the English version. All multilingual material is available on the Ministry of Labour’s
website at: Ontario.ca/employmentrights.

Providing Copies
Changes in the law that came into force on May 20, 2015 require employers to provide any
employees who are covered under the ESA with a copy of the most recent version of the
Employment Standards Poster. Any new employees hired after May 20, 2015 must be given a
copy within 30 days of their date of hire.
If an employee requests a copy of the poster in a language other than English and the ministry
has published a version in that language, the employer must provide the translated version in
addition to the English copy. All multilingual material is available on the Ministry of Labour’s
website at: Ontario.ca/employmentrights.

The Employment Standards Workbook 6

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
An employer may provide the poster as a printed copy or as an attachment in an email to the
employee. In addition, an employer may provide the poster via a link to the document on an
internet database, but only if the employer ensures the employee has reasonable access to
that database (i.e. must ensure the employee has access to a computer and is able to access
a working link to the document) and ensures the employee has access to a printer and that
the employee knows how to use the computer and the printer.
Copies of the poster can be obtained:

• free from the Ministry of Labour’s website at Ontario.ca/ESAposter;

and

• for the cost of shipping and handling from ServiceOntario Publications, 1-800-668-9938.

Hanging the poster in the workplace, distributing the poster to employees and
ensuring the standards described in it are followed is an excellent employee relations
practice. It’s also the law.

Employment Standards Poster Checklist

Please verify that:

 There is a copy of the ESA poster posted in your workplace.

 It is the current version (visit Ontario.ca/ESAposter to verify).

 It is posted where it will come to the attention of employees.

 If required, it has been posted in a second language.

 If the business has multiple locations, there is a copy posted in each one.

 Employees were provided with a copy of the current version of the poster within 30
days of being hired (visit Ontario.ca/ESAposter to verify).

 Employees were provided with a translated version of the poster in addition to a

copy in English if requested and the ministry had a published version in that
language.

The Employment Standards Workbook 7

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
2. PAYMENT OF WAGES AND WAGE STATEMENTS
Proper wage statements (often called pay stubs) and payroll records are important elements of
good business. They are also required under the Employment Standards Act (ESA).
Creating and providing wage statements achieves three important functions:
1. It shows that the employer is being open about what and how they pay their employees.
2. It shows that the employer is complying with the ESA by creating accurate records.
3. Documenting this information will help prevent future disputes over pay.
An employer must:
1. Establish a recurring pay period and a recurring pay day; and
2. Pay all wages earned in a pay period – other than accrued vacation pay – on or before
the pay day for that period.
Wage statements create common understanding between employer and employee, showing
that the employee has been paid for the time worked in the manner they both agreed to.

Wage Statement Requirements

The wage statement an employer gives its employee must include information about:

• The pay period for which the wages are being paid;

• The employee’s wage rate (if one exists);

• The gross amount of wages – before taxes and other deductions – and how it was
calculated (unless the employee is given the information in some other way, as in an
employment contract);

• The amount and purpose of each wage deduction;

• Amounts deemed to have been paid to the employee because of room and board
provisions (if applicable), and

• The net amount of wages.

The wage statement must be in writing (or provided by email if the employee is able to make a
paper copy at the workplace).
An employer must keep a copy of the information contained in an employee’s wage statement
for three years from the time it was given.

The Employment Standards Workbook 8

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
Example of Pay Period
In this example, the pay period runs from Friday the 11th to Thursday the 17th, and the payday
for this period is the following Wednesday the 23rd.

Calendar Illustrating a Regular Pay Period & Regular Pay Day

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

1 2 3 4 5

6 7 8 9 10 11 12

13 14 15 16 17 18 19

20 21 22 23* 24 25 26

27 28 29 30

* In this example, all the employee’s earnings during the pay period from the 11th to the 17th of
the month must be paid on the 23rd. (Earnings from the 18th to the 24th will be paid on the 30th)

IMPORTANT NOTE: Some employees earn commissions based on sales they make.
In these situations, it is common for the commission to not be paid until the goods
or services have been delivered to the customer and the employer has received
payment. This is allowed if the employee expressly or implicitly agrees to
the arrangement.

Wage Statement Checklist

Please verify that:

 A recurring pay period and a recurring pay day has been established in your
workplace.
Please note that employers are required by law to establish a recurring pay period and
a recurring pay day.

 Employees receive a written wage statement (pay stub) on their regular pay day.
Please note that employers are required by law to provide employees with wage
statements.

The Employment Standards Workbook 9

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
Please verify that the following are included in wage statements:

 Start and end dates of the work period for which pay is given.

 Wage rate, if applicable (e.g., $15 per hour).

 Gross amount (before deductions) paid.

 If vacation pay is being paid on that pay day, that information is itemized separately
on the regular wage statement or is provided separately on its own wage statement.

 Method used to calculate gross wages (unless information is given another way).

 Each deduction made from the gross amount with explanation.

 Net amount being paid.

Employees:
While it is the employer’s responsibility to record and keep information used in creating
wage statements, it may also be beneficial for employees to keep wage statements provided
to them.

The Employment Standards Workbook 10

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
3. DEDUCTIONS FROM WAGES

You should be aware that under the Employment Standards Act (ESA), only three
types of deductions can be made from an employee’s wages: statutory deductions,
deductions authorized by a court order and deductions authorized by the employee
in writing (subject to certain restrictions and conditions). For more information,
watch our video on illegal deductions from wages available at:
http://www.labour.gov.on.ca/english/gallery/es/v_deductions.php

Statutory Deductions
These are deductions made according to federal and provincial legislation. They include
Income Tax, Employment Insurance Premiums and Canada Pension Plan contributions. The
money deducted must be remitted to the proper authorities.

Court Orders/Garnishment
A court may order an employer to deduct an amount from an employee’s wages. The money
deducted must be paid out in accordance with directions contained in the court order.

Written Authorization
An employer may deduct money from an employee's wages if the employee has agreed to this
in writing, subject to certain rules. Written authorization must state that the employee
authorizes the deduction from his or her wages. It must also specify the amount of money
deducted or a method of calculating the amount of money to be deducted.
It is not enough to have an oral statement that the employee authorizes the deduction, or to
have a written statement that the employee owes money to the employer without stating that
the amount can be deducted from the employee’s wages.

IMPORTANT NOTE: A deduction from wages, even with signed authorization from the
employee, is not allowed if it pertains to:
• A loss due to faulty work. For example, a mistake in a credit card transaction,
work that is spoiled or rejected, or damage to company tools/vehicles.
• A cash shortage or lost or stolen property if a person other than the employee
had control over or access to the cash or property. For example, if customers
leave without paying the bill (commonly referred to as “dine and dash”).

The Employment Standards Workbook 11

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
Deductions from Wages Checklist
Employers, please verify that:

 The only types of deductions from employees’ wages are either statutory deductions,
court ordered deductions, or deductions for which there is a written authorization.
Employers and employees, please verify that if deductions from wages are made on the basis
of a written authorization, that the written authorization:

 States that the employee authorizes the deduction.

 Includes either the amount of the deduction or a method for calculating the amount.
Employers and employees, even with a written authorization in place, please verify that the
deduction(s) are not being made for:

 Faulty work.

 Cash shortages/lost or stolen property where someone other than the employee had
access to the cash or property.

The Employment Standards Workbook 12

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
4. TIPS AND OTHER GRATUITIES
Generally, an employer cannot withhold, make deductions from, or make an employee return
his or her tips and other gratuities to them, unless they are:

• Following a court order or statute, or

• Redistributing them as part of a tip pool.

Deductions from tips and other gratuities to cover things like spillage, breakage, losses or
damage, etc. are not allowed.
For more information visit Ontario.ca/tipsandgratuities.

Court Orders/Garnishment
A court order may indicate that an employee owes money either to the employer or to
someone else other than his or her employer, and that the employer can make a deduction
from the employee's tips to pay what is owed.

Statutory Deductions
These are deductions made according to federal and provincial legislation. They include
Income Tax, Employment Insurance Premiums and Canada Pension Plan contributions. The
money deducted must be remitted to the proper authorities.

Tip Pooling
IMPORTANT NOTE: An employer generally cannot share in a tip pool unless he or she is
a sole proprietor, partner, director or shareholder in the business and regularly
performs to a substantial degree the same work performed by some or all of the
employees who share in the redistribution, or by employees of other employers in the
same industry who commonly receive tips and other gratuities.
Example A
John is a director and manager of a restaurant that employs servers, bartenders, chefs and
hostesses. John has a tip pooling practice in place whereby he collects a percentage of his
servers’ tips and then redistributes them among the chefs, the hostesses and the bartender. In
this circumstance, John does not perform to a substantial degree the same work performed by
some or all of the employees who share in the redistribution, or by employees of other
employers in the same industry who commonly receive tips or other gratuities therefore John
may not participate in the tip pool.

The Employment Standards Workbook 13

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
Example B
Daisy is the sole proprietor of a hair salon and works at her salon as a stylist. When salon
patrons pay for their services they often include a tip for their stylist. Daisy collects these tips
and provides them to the stylists at the end of their shift. She also runs a tip pool where a
percentage of the tips collected are redistributed to salon support staff (e.g. hair washers,
styling assistants, etc.). In this case, Daisy may participate in the tip pool because she
performs to a substantial degree the same work performed by some or all of the employees
who share in the redistribution, or by employees of other employers in the same industry who
commonly receive tips or other gratuities.

Tips and Gratuities Checklist

Employers, please verify that:

 The only time you are withholding, making deductions from or requiring employees to
turn over their tips and other gratuities is when doing so is authorized by a statute,
court order, or if it is part of a tip pooling arrangement.

 The only time you are taking a portion of a tip pool for yourself is if you are a sole
proprietor, partner, director or shareholder in the business and you regularly perform to
a substantial degree the same work performed by some or all of the employees who
share in the redistribution (or by employees of other employers in the same industry
who commonly receive or share tips and other gratuities).

 While there is no responsibility on the part of an employer to keep records regarding

tips and gratuities, it would be beneficial to document your practices relating to tips
and gratuities, including tip pooling, electronic tip payments, and any deductions made
pursuant to statute or court order.
Employees:

 While there is no responsibility on the part of the employee to keep records, it is

beneficial to track the tips and other gratuities you receive from customers or as part
of a tip pool, and any amounts that you may contribute to a tip pool.

The Employment Standards Workbook 14

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
5. RECORD KEEPING

Employers must keep certain records concerning employees. There are many forms
to help businesses in this area. (For example, refer to the Canadian Payroll
Association http://www.payroll.ca/)

The Employment Standards Act (ESA) requires that employers keep written records about
each employee for a certain time period. Records can either be kept by the employer or
someone authorized to keep them on the employer’s behalf (for example, an accountant or a
payroll company). Regardless, these records have to be readily available for a Ministry of
Labour employment standards officer.
Other chapters of this workbook often include a records checklist for the particular standard
being discussed. Below is a list of record keeping rules:

Specific Rules
1. Records of each employee’s name, address and employment start date must be kept
for three years after the employment ends.
2. The date of birth of any students under 18 must be recorded and kept until they turn 21
or for three years after their employment ends, whichever happens first.
3. The number of hours that non-salaried employees worked each day and each week
must be recorded. In the case of salaried employees, (i.e., those who are paid a fixed
amount for each pay period, which doesn’t vary with hours worked, unless more than 44
hours are worked in a week), employers must record the hours worked in excess of
their regular work week, and those in excess of eight hours a day (or the employee’s
regular work day).
4. An employer must keep all documents relating to an employee’s leave (e.g., pregnancy,
parental, family medical, etc.) for three years after the day the leave has expired.
5. If an employer employs homeworkers, a register must be kept showing each
homeworker’s name, address and wage rate. This information can be deleted from the
register three years after the homeworker’s employment ends.

The Employment Standards Workbook 15

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
Record Keeping Checklist
Employers, please verify that:

 Your records are kept in a manner that follows the five specific rules described
above.
Employees:

 While it is the employer’s responsibility to keep records, it may also be beneficial for
employees to keep a daily record of hours worked.

The Employment Standards Workbook 16

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
6. HOURS OF WORK
There are limits to the number of hours most employees can be required or allowed
to work. Generally, the daily and weekly limits are eight hours and 48 hours,
respectively. However, some businesses and/or employees are exempt or subject to
special rules. The Special Rule Tool (available at Ontario.ca/ESAtools) can help you
find out if an exemption or special rule applies.

Daily Limits of Work

The maximum number of hours most employees can be required or allowed to work in a day is
eight hours or the number of hours an employer has established as the employee’s regular
work day, if it is longer than eight hours.

Exception to Daily Limits of Work

Generally speaking, an employee can be required or allowed to work more than the daily limit
only if he/she has agreed in writing and was provided with the handout entitled INFORMATION
FOR EMPLOYEES: About Hours of Work and Overtime Pay, prior to the agreement. The
agreement must contain an acknowledgement that the information sheet was provided. This
information sheet can be found on the Ministry of Labour’s website at
Ontario.ca/EmploymentStandards, under “Topics and Publications”.

IMPORTANT NOTE: Even if these conditions are met, generally an employee still
must have 11 consecutive hours free from work in each day (24 hour period). For
more information about Daily Rest, see the Hours of Work & Overtime Tool (available
at Ontario.ca/ESAtools).

Weekly Limits of Work

The maximum number of hours most employees can be required or allowed to work in a week
is 48 hours.

The Employment Standards Workbook 17

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
Exceptions to Weekly Limits of Work
Generally speaking, an employee can be required or allowed to work more than the weekly
limit only if he or she has agreed in writing and was provided with the handout entitled
INFORMATION FOR EMPLOYEES: About Hours of Work and Overtime Pay, prior to the
agreement. The agreement must contain an acknowledgement that the information sheet was
provided. Unlike the daily limits of work, the approval of the ministry’s Director of Employment
Standards is also required. (The weekly limit can be exceeded while an application for
approval is pending, but certain conditions and restrictions apply.) For more information on the
hours of work and overtime provisions, see the Hours of Work & Overtime Tool (available at
Ontario.ca/ESAtools).

Things to Consider
• If an employer plans to have a work week that is longer than 48 hours or to average
hours of work for overtime purposes, the Applications for Approval of Excess Hours or
for Averaging Hours of Work provides step-by-step instructions. The application is
available at Ontario.ca/ESAforms. It is also strongly suggested that employers visit the
Hours of Work & Overtime Tool (available at Ontario.ca/ESAtools) for a more complete
understanding of these employment standards.

• Requiring or allowing employees to work more than 48 hours per week without the
approval of the ministry’s Director of Employment Standards is a violation of the ESA,
unless:
 the employee is exempt;
 one of the ESA’s “exceptional circumstance” provisions applies; or
 in certain cases, an approval application is pending.

• An agreement between an employee and an employer to work additional daily or weekly

hours, or an approval from the Director of Employment Standards for excess weekly
hours, does not mean that the employee is not entitled to overtime pay. They are
separate standards.

Employer Posting Requirements

Employers are required to post a copy of the application in at least one conspicuous place in
every workplace where it is likely to come to the attention of the employees it applies to. The
application must remain posted until an approval or notice of refusal is issued.
If 30 days pass from the date the application was served on the Director of Employment
Standards and the employer has not been notified that the application has been refused, the
employer may:

The Employment Standards Workbook 18

Questions? Call the Employment Standards Information Centre at 1-800-531-5551
 • In the case of an Application for Excess Weekly Hours of Work, schedule employees to
work up to the maximum of 60 hours per work week, provided that the conditions
prescribed in the ESA are met.

• In the case of an Application to Average Hours of Work for Overtime Pay Purposes,
average hours of work over a period of two work weeks provided that the conditions
prescribed in the ESA are met.
If the application is refused, a copy of the Notice of Refusal must be posted in at least one
conspicuous place in the workplace so that it is likely to come to the attention of the employees
covered by the application. The employer must keep the Notice of Refusal posted for 60 days
following its date of issue.

IMPORTANT NOTE: Application forms for excess weekly hours of work or to average
hours of work for overtime purposes are available at Ontario.ca/ESAforms. If you are
considering an averaging application, it is suggested you consult the “Overtime
Averaging” section of the Hours of Work & Overtime Tool, available at
Ontario.ca/ESAtools.

The remainder of this chapter has been written with the assumption that employees are not
exempt from regular hours of work rules and are not covered by special rules.

Hours Free from Work

Employees are entitled to a certain number of hours free from having to do work. These times
include:

• Daily rest periods

• Time off between shifts

• Weekly or bi-weekly rest periods

Daily Rest Period Requirements

In most cases, an employee is required to receive at least 11 consecutive hours off work each
day (i.e., within a 24 hour period, not necessarily a calendar day).
The daily rest requirement applies even if the employer has received approval from the
ministry’s Director of Employment Standards to exceed weekly limits on hours of work. This
requirement cannot be altered by a written agreement between the employer and employee.

IMPORTANT NOTE: This rule does not apply to employees who are on call and called
in to work during a period when they would not normally be working. For more
information, see the “Daily Rest” section of the Hours of Work & Overtime Tool
(available at Ontario.ca/ESAtools).

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Time Off Between Shifts
Employers must give their employees at least eight hours off work between shifts, unless:

• the employee and employer agree in writing that the employee will receive less than
eight hours off work between shifts, or

• the total time worked on both shifts does not exceed 13 hours.
For more information, visit the “Rest Between Shifts” section of the Hours of Work & Overtime
Tool for (available at Ontario.ca/ESAtools)
Example
Monica works in a restaurant. She is on split shifts, working from 11:30 a.m. to 2:30 p.m. and
then from 4 p.m. to 7 p.m. The total time of her two shifts is six hours. Monica does not need to
have eight hours off between the shifts because her total hours worked on the shifts does not
exceed 13 hours.

Weekly or Bi-weekly Rest

Employees must receive at least:

• 24 consecutive hours off work in each work week; or

• 48 consecutive hours off work in every period of two consecutive work weeks.

Exceptional Circumstances
There are exceptional circumstances where an employer may require employees to work more
than the daily or weekly work limits, or to work during a period that otherwise requires time off
for the employee. The ESA’s exceptional circumstances apply only when it is necessary to
avoid serious interference with the ordinary working of the employer’s operations. This is
explained further below.
Exceptional Circumstances exist when:

• There is an emergency;
• Something unforeseen occurs that would interrupt the continued delivery of essential
public services, regardless of who delivers these services;
• Something unforeseen occurs that would interrupt continuous processes;
• Something unforeseen occurs that would interrupt seasonal operations; and/or
• It is necessary to carry out urgent repair work to the employer's plant or equipment.

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Examples include, but are not limited to:

• a natural disaster/very extreme weather;

• a major equipment failure;
• fire or flood (even if not caused by a natural disaster or extreme weather); and/or
• an accident or breakdown in machinery that prevents others in the workplace from doing
their jobs (e.g., the shutdown of an assembly line in a manufacturing plant).
Examples of situations that are not considered exceptional circumstances:

• Rush orders being filled;

• Periods of inventory-taking;
• When an employee does not show up for work;
• Poor weather slows shipping or receiving;
• During seasonal busy periods (e.g., Christmas); and/or
• During routine or scheduled maintenance.

IMPORTANT NOTE: Requiring an employee to work hours in excess of the daily or

weekly limits, or during a period that requires time off for the employee in
circumstances that are not exceptional (as described above), is illegal.

Miscellaneous Things to Remember

Night Shifts
The ESA does not put restrictions on the timing of an employee's shift other than the
requirements for daily rest and time off between shifts, as described earlier. Also, the ESA
does not require an employer to provide transportation to or from work if an employee works
late.
Travel Time
The ministry considers the time an employee spends getting to or from a place where work
was or will be performed (with the exception of commuting time) as working time. Commuting
time is usually not seen as working time. Commuting time for an employee who has a regular
work location is the time it takes him or her to get to work from home and vice versa. There are
some situations where commuting time has been seen as working time (e.g., an employee
takes a work vehicle home in the evening for the convenience of the employer or where the
employee is required to transport supplies or other staff to or from the workplace or work site).
Training Time
Time spent by an existing employee in training that is required by the employer or by law is
considered to be working time. An example would be training that is a condition to continued
employment in a position.

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Time spent in training that is optional to the employee (i.e., not required by the employer in
order for the employee to continue in his or her job) would not be considered working time. An
example of this would be if an employee was looking for a new position with the employer and
training was necessary to obtain that position.

Hours of Work Checklist

Employers, please verify that employees in your workplace receive the correct:
 Daily rest periods.

 Time off between shifts.

 Weekly or bi-weekly rest periods.

Employers, please also verify that:
 You have a record of the hours worked by your non-salaried employees each
day and week, and a record of the excess daily and weekly hours worked by
salaried employees.

 You have kept these for three years after the day or week of work.
Employees:
 While it is the employer’s responsibility to keep records, it may also be beneficial
for you to keep a daily record of hours worked.

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7. EATING PERIODS

Most employees are entitled to an eating period (meal break) during their shift. The
length and timing of the eating period is somewhat flexible, recognizing work
demands. Meal breaks, whether paid or unpaid, are generally not considered working
time and are therefore not typically counted toward the limits on hours of work,
overtime pay or minimum wage. For more information, visit the “Eating Periods”
section of the Hours of Work & Overtime Tool (available at Ontario.ca/ESAtools).

An employee must not work for more than five hours in a row without getting a 30-minute
eating period free from work. However, an employer and employee can agree that the eating
period can be split into two periods within every five consecutive hours. Together, these
periods must total a minimum of 30 minutes. This agreement can be oral or in writing.
Meal breaks are unpaid unless the employee's employment contract requires payment. Even
if the employer pays for meal breaks, the employee must be free from work during the eating
period.

Non-Eating Period Breaks

There is no requirement for an employer to give their employees coffee breaks or any other
kind of break other than eating periods.
Time spent by an employee on a coffee break or other non-eating period break during which
he or she is required to remain at the workplace is considered to be working time under the
Employment Standards Act. If the employee is free to leave the workplace during the coffee
break or other type of break, it is not considered to be working time.

Eating Periods Checklist

Employers, please verify that:

 Your employees work no more than five hours in a row before receiving a
30-minute meal break.

 Employee(s) who are splitting the 30-minute eating period into two periods have
agreed to this, either in writing or orally, and that both periods are taken within
five consecutive hours.

 Employee(s) are free from work during the meal break(s), even if time spent on
the eating period is paid by the employer.

 Break time is treated as work time for employee(s) who are given additional
non-eating period break(s) – such as coffee breaks – if they are required to remain
at the workplace during the break.
The Employment Standards Workbook 23
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8. OVERTIME PAY
For most employees, overtime begins after working 44 hours in a work week,
regardless of whether they are full-time, part-time, students or casual employees.
After 44 hours, they must receive overtime pay for each hour worked, which is a
minimum of 1.5 times the employee's regular rate of pay (often called "time and a
half”). However, some businesses and/or employees are exempt or have special
conditions. The Special Rule Tool (available at Ontario.ca/ESAtools) can help you
find out if this applies.

Helpful Tip: If you are reviewing this chapter to understand how special rules apply when the
overtime threshold for a particular type of work is higher than 44 hours, or when a lower
overtime threshold is in place because of an employment contract, the following material is still
relevant. You simply need to replace 44 hours with the particular overtime threshold that
applies to your situation.
Averaging hours of work for overtime pay purposes can only be done if an employer has
applied for and received approval from the Ministry of Labour’s Director of Employment
Standards. The employer also needs to have an employee’s written agreement to average his
or her hours of work.
For more information about overtime, visit the “Overtime” section of the Hours of Work &
Overtime Tool (available at Ontario.ca/ESAtools). The form for applying for averaging hours
can be found at: Ontario.ca/ESAforms.

Common Questions About Overtime Pay

Q. Is there a daily overtime pay requirement?
A. Unless the employee’s employment contract or collective agreement provides the employee
with a right to overtime pay when the number of hours worked in a day exceeds a certain
amount, overtime pay is not calculated on a daily basis.
Q. Can managers and supervisors earn overtime pay?
A. Managers and supervisors are not covered by overtime rules. However, it is not enough to
simply call an employee a ‘manager’ or ’supervisor.’ For the employee to be exempt from the
overtime provisions found in the Employment Standards Act (ESA), he or she must do work
that is supervisory or managerial in nature, and only do non-managerial or non-supervisory
work on an irregular or exceptional basis.
Example
If a manager of a shoe store performs the duties of the employees he or she manages every
day from noon to 1 p.m. to cover the lunch rush, the performance of these non-managerial
duties is not irregular. Therefore, the managerial/supervisory exemption to overtime pay would
not apply and the employee would be entitled to overtime pay if he or she works more than 44
hours in a week.

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Q. What if an employee does more than one kind of work during the week?
A. If an employee does different kinds of work in a week, entitlement to overtime pay will hinge
on whether at least 50 per cent of the working hours were spent in a job category that is
covered by overtime pay rules. If they were, the employee is entitled to overtime pay if he or
she worked more than 44 hours in that week.
Q. How is overtime pay calculated when there is a public holiday during the week?
A. This depends on whether the employee works on the public holiday or not, and how he or
she is paid. The following table outlines the three possibilities:

Scenario Outcome

Employee has the day off with public holiday No hours were worked on the public holiday.
pay. As such, there are no hours to count for
that day for overtime pay purposes.

Employee works on the public holiday and Hours worked on the public holiday do not
gets Premium Pay* plus public holiday pay count for overtime pay purposes.
for the day.

Employee works on the public holiday, is Hours worked on the public holiday do
paid at straight time and receives a count for overtime pay purposes.
substitute day off (for which he or she will
receive public holiday pay).

*Premium Pay is 1.5 times the employee’s regular rate. Please see Chapter 9 for a full
explanation of public holiday rules.

Calculating Overtime Pay

Overtime pay calculations vary depending on the type of payment arrangement between an
employer and an employee. For more information about overtime and how it is calculated, see
the “Overtime” section of the Hours of Work & Overtime Tool (available at
Ontario.ca/ESAtools).
Categories of Employees by Payment Arrangements

• Hourly • Salary for set hours

• Hourly rate, plus commissions • Piecework or straight commission

• Fixed (unchanging) salary • Mixed hourly rate

On the following five pages, examples are given of overtime pay calculations for each of the
above categories of employees. These descriptions and examples are intended to help you
quickly determine the type of payment arrangement(s) that are in place and how to calculate
overtime pay in each situation.

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 IMPORTANT NOTE: In these examples, “regular pay” means pay for all non-overtime
hours in the work week.

A) Hourly
This is the most straightforward arrangement. An employee who is paid an hourly rate receives
that amount for every hour worked up to 44 hours per week. For any hours over that, the
employee receives time and a half his or her regular hourly rate for each hour worked.
Example A: Ravi’s regular pay is $14 per hour. This week Ravi worked 46 hours.
Calculating his overtime pay:
1. Ravi’s hours of overtime are calculated:

• 46 hours – 44 hours per week = 2 overtime hours

2. His overtime rate is calculated:

• $14 per hour x 1.5 = $21.00 per hour (overtime rate)

3. Then his overtime wages are calculated:

• 2 hours x $21.00 per hour = $42.00

4. Finally, Ravi’s regular pay for the week is added to his overtime wages:

• Regular Pay: 44 hours x $14 per hour = $616

• Overtime pay: 2 hours x $21.00 = $42.00

• Total Pay = $658.00 ($616 + $42)

Therefore, Ravi is owed $658.00 for this week of work.
B) Hourly Rate Plus Commission
An employee in this category receives an hourly rate for all hours worked. He or she also
receives commissions as part of his or her weekly pay.
For this employee, a regular rate must be established. This is not the same as the hourly rate;
it is calculated as his or her total earnings in a week, divided by the number of non-overtime
hours he or she worked in that week. This regular rate is then used to calculate the amount of
overtime pay that is owed.

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Example B: Justine is paid $15.00 an hour, plus commission. In one work week, she worked
47 hours and was paid $705.00 in hourly wages, plus $100 in commission.
Calculating her overtime pay:
1. Justine’s regular rate is calculated:

• $705.00 + $100 = $805.00 (total wages paid)

• $805.00 ÷ 44 hours = $18.30 per hour (regular rate)

2. Then her overtime rate is calculated:

• $18.30 per hour x 1.5 = $27.45 per hour (overtime rate)

3. Next her overtime wages are calculated:

• 47 hours – 44 hours = 3 hours of overtime

• 3 hours x $27.45 per hour = $82.35 earned in overtime wages
4. Finally, the amount already paid at regular wage for the 3 hours of overtime is
subtracted from the overtime calculation (Note: She was already paid $15.00/hour for all
the hours she worked, including those 3 overtime hours):

• 3 hours x $15.00 per hour = $45.00 (regular rate for overtime hours)

• $82.35 - $45.00 = $37.35 (outstanding amount still needed to be paid).

Therefore, Justine is entitled to a total pay of $842.35 for that week.
C) Fixed (Unchanging) Salary
An employee on a fixed salary is someone whose hours of work may change from day to day
but whose weekly salary stays the same. The fixed salary is actually the employee’s pay for all
hours worked up to and including 44 hours per week (or a lower threshold that has been set
out in an employment contract; e.g., 40 hours per week). Additional hours must be paid at an
overtime rate.
Example C: Sharon’s fixed salary is $800 per week. This week she worked 48 hours.
Calculating her overtime pay:
1. Sharon’s regular rate is calculated:

• $800 salary ÷ 44 hours = $18.18 per hour

• Note: Sharon’s salary of $800 covers her first 44 hours of work.

2. Next, her overtime rate is calculated:

• $18.18 per hour x 1.5 = $27.27 per hour (overtime rate)

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 3. Her overtime wages are calculated:

• 4 hours x $27.27 per hour = $109.08

4. Finally, Sharon’s regular pay for the week is added to her overtime wages:

• Reg. Pay = $800 (salary)

• Overtime Pay = $109.08

• Total Pay = $909.08 ($800 + $109.09)

Therefore, Sharon is entitled to $909.08 in total pay for that week.
D) Salary for Set Hours
An employee receiving a salary for a set number of hours is someone who is paid a set salary for a set
number of hours in the work week. However, his or her salary is adjusted if he or she works more or
less than the set number of hours. Hours up to 44 are paid at straight time. Additional hours (more than
44 hours) must be paid at an overtime rate.

Example D: Ben’s contract states that he is to be paid a “salary” of $700 per week and has a
regular work week of 40 hours. However, if Ben works less than or more than 40 hours in the
week, the employer reduces or increases Ben’s pay.
The reductions or increases to his weekly salary are calculated based on an hourly rate of
$17.50, determined by dividing the “salary” of $700 per week by the number of hours in a
regular work week (40 hours). For example, if Ben misses three hours of work in his regular
40 hour work week because of a medical appointment, he is paid $647.50 for that week. In
another week, if he has put in an additional two hours to finish a project, he is paid $735.
In the example below, Ben works 50 hours one week.
Calculating his overtime pay:
1. Ben’s regular rate is calculated:

• $700 salary ÷ 40 hours = $17.50 per hour

2. His non-overtime earnings are calculated:

• $17.50 per hour x 44 hours = $770

3. His overtime rate is calculated:

• $17.50 per hour x 1.5 = $26.25 per hour (overtime rate)

4. His hours of overtime are calculated:

• 50 hours – 44 hours per week = 6 overtime hours

5. Overtime wages are then calculated:

• 6 hours x $26.25 per hour = $157.50

The Employment Standards Workbook 28

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 6. Finally, Ben’s regular pay for the week is added to his overtime wages:

• Regular Pay: $770

• Overtime Pay: $157.50

• Total Pay: $927.50 ($770 + $157.50)

Therefore, Ben is entitled to $927.50 in total pay for the week.
E) Piecework or Straight Commission
Piecework or straight commission employees are paid according to what they produce. Their
wages are calculated based on the number of pieces they complete or commissions they earn
rather than on the number of hours they work.

IMPORTANT NOTE: Regular pay is pay for all non-overtime hours in the work week.

Example E: Becka is paid on a piecework basis. Rhian earns straight commissions on sales or
offers to purchase goods or services that are normally made at the employer’s place of
business. They both worked 48 hours this work week and each received a total of $528.
Calculating their overtime pay:
1. Their regular rate is calculated:

• $528 ÷ 44 hours = $12 per hour

2. Their overtime rate is then calculated:

• $12 per hour x 1.5 = $18 per hour (overtime rate)

3. Their hours of overtime are calculated:

• 48 hours – 44 hours = 4 hours overtime

4. Overtime wages are then calculated:

• 4 hours x $18 per hour = $72

• Note: They are both entitled to $72 in overtime pay in addition to $528 in regular
pay.
5. Finally, their regular pay for the week is added to their overtime wages:

• Regular Pay: $528

• Overtime Pay: $72

• Total Pay: $600

Therefore, Becka and Rhian are both entitled to $600 in total pay.

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F) Mixed Hourly Rate
This is when an employee performs two types of work that have two different rates of pay.
Example F: Aaron works at two different jobs for his employer. For job A he is paid $12 an
hour, while for job B he is paid $15. One week he worked a total of 60 hours (36 hours at job A
and 24 hours at job B). He received only “straight time” for all the hours he worked. He was
paid a total of $792 ($432 for job A and $360 for job B).
Because Aaron has two different hourly rates (depending on what job he is doing for his
employer), determining his “regular rate” for overtime pay purposes requires a “weighted
average” calculation. This is an average hourly rate based on the proportionate amount of time
spent in job A and the proportionate amount of time spent in job B. This requires several steps:
1. Determine the percentage of time Aaron spent in each job:

• Job A: 36 hours out of a total of 60: 36 ÷ 60 = 60%

• Job B: 24 hours out of a total of 60: 24 ÷ 60 = 40%

2. Using those percentages, determine how many of Aaron’s non-overtime hours (44)
should be considered to have been spent on job A and how many should be considered
to have been spent on job B:

• Job A: 60% of 44 hours = 26.4 hours

• Job B: 40% of 44 hours = 17.6 hours

3. Multiply those hours by the hourly rate for each job to determine how much of Aaron’s
total pay should be considered to have been paid for his non-overtime hours:

• Job A: 26.4 hours x $12 per hour = $316.80

• Job B: 17.6 hours x $15 per hour = $264

• Total pay for non-overtime hours = ($316.80 + $264) = $580.80

4. Divide the total pay for non-overtime hours by 44 to obtain Aaron’s regular rate:

• $580.80 ÷ 44 = $13.20 per hour

5. Multiply the regular rate by 1.5 to determine the overtime pay rate:

• $13.20 x 1.5 = $19.80 per hour (overtime rate)

6. Multiply the overtime hours by the overtime pay rate to determine Aaron’s overtime pay
entitlement:

• (60-44) x $19.80 = $316.80

7. Aaron was paid “straight time” for all hours worked, including the overtime hours.
Therefore, he has received $211.20 of his overtime entitlement:

• $792 total paid - $580.80 paid for non-overtime hours = $211.20

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 8. To determine the outstanding overtime pay entitlement that is due, deduct the total
overtime entitlement from the amount that he was already paid:

• $316.80 - $211.20 = $105.60

Therefore, Aaron must be paid an additional $105.60 to satisfy his overtime pay entitlement.

Time Off In Lieu Instead of Overtime Pay

An employee and an employer can agree in writing that the employee will receive paid time off
work instead of overtime pay (referred to as “banked” time or “time off in lieu”).
If such an agreement has been made, the employee must be given a minimum of 1½ hours of
paid time off work for each hour of overtime worked. The paid time off must be taken either:

• within three months of the week in which the overtime was earned; or

• within 12 months, if the employee agrees in writing.

• For more information about Overtime and Time Off in Lieu and how it is calculated see
the “Overtime and Time Off in Lieu” section of the Hours of Work & Overtime Tool
(available at Ontario.ca/ESAtools).

IMPORTANT NOTE: If the employment relationship ends before an employee has

taken the paid time off, he or she must receive overtime pay and it must be paid no
later than seven days after the date the employment ended or on what would have
been the employee’s next pay day.

An employee can make an agreement to take time off in lieu of overtime pay. However, an
employer and an employee cannot agree that the employee will give up his or her right to
overtime pay under the Employment Standards Act (ESA). Also, an employer cannot
lower an employee's regular rate to avoid paying time and a half after 44 hours (or other
overtime threshold that applies) in a work week.

Overtime Pay Checklist

Employers and employees, please verify:

 That the type of work employees perform is:

• Covered by regular overtime pay rules, and that overtime pay is applied after 44
hours of work in the week, or at a lower threshold if provided for in an employment
contract, OR

• Covered by special rules for overtime, and that overtime pay is applied after the
legislated threshold of hours worked in the week is reached, OR

• Not covered by (exempt from) regular overtime pay rules.

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  If the work is covered by regular or special overtime pay rules, that:

• work performed beyond the overtime threshold for the work week is paid at a
rate of at least 1 ½ times the employee’s regular rate of pay for each hour of
overtime worked, OR

• if a written agreement between the employer and employee is in place, that

work performed beyond the overtime threshold for the work week is taken as
paid lieu time off at a rate of at least 1 ½ hours of paid time off for each hour
of overtime worked.

 If paid lieu time off is given for overtime hours worked, that:

• The paid time off is taken within three months of the week in which overtime was
worked, OR

• If stated in a written agreement between the employee and employer, that the paid
time off in lieu of overtime pay is taken within 12 months of being worked, and

• If employment ends before all paid time off in lieu of overtime hours are taken, that
the employee receives overtime pay for the remaining lieu time.

 An employee no longer working with the employer receives all outstanding overtime
pay within seven days of their employment ending or on the date that would have
been the employee’s next pay day, whichever is later.

 Where an employer wishes to average hours of work for overtime pay purposes, that
the employer has:
1) obtained written authorization from each affected employee to average hours for
overtime pay purposes, and
2) applied for and received approval from the Director of Employment Standards.

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9. MINIMUM WAGE

IMPORTANT NOTE: This resource is for illustrative purposes only. The minimum
wage rates are subject to annual indexation based on the rate of inflation. If that rate
is changed, the new rate will be published on or before April 1 and will come into
effect on October 1. For the current rates, please visit Ontario.ca/minimumwage.

The minimum wage is the lowest hourly pay rate that an employer can pay an employee. Most
employees are eligible for minimum wage. However, a few employers and employees are
exempt. To see if this exemption applies to your situation, please see the Special Rule Tool
(available at Ontario.ca/ESAtools).

Employees Who Must Receive Minimum Wage

• Full-time

• Part-time

• Casual

• Those paid an hourly rate

• Those paid a commission (where, in the case of sales commissions, the employee is a
route salesperson or the sales or offers to purchase goods or services are normally
made at the employer’s place of business)

• Those paid a piece rate

• Those paid a flat rate, or

• Those paid a salary

Minimum Wage Rates

Minimum Wage Type Description Amount as of October

1, 2016

General Minimum Wage Rate that applies to most employees. $11.40 per hour

Student Minimum Wage Rate that applies to students under the $10.70 per hour
age of 18 who work 28 hours a week or
less when school is in session or work
during a school holiday.

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 Minimum Wage Type Description Amount as of October
1, 2016

Liquor Servers’ Rate that applies to employees who $9.90 per hour
Minimum Wage serve liquor directly to customers or
guests in licensed premises as a
regular part of their work.
Note: "Licensed premises" are
businesses for which a license or
permit has been issued under the
Liquor License Act.

Hunting and Fishing Rate is based on blocks of time instead $56.95 (rate for working
Guides’ Minimum Wage of by the hour. They are entitled to one less than five
rate for working less than five consecutive hours in
consecutive hours in a day, and a day)
different rate for working five hours or
$113.95 (rate for
more in a day –whether or not the
working five or more
hours are consecutive.
hours in day,
regardless if the hours
are worked
consecutively)

Homeworkers’ Minimum Rate applies to employees who do paid $12.55 per hour
Wage work in their own homes. For example,
they may sew clothes for a clothing
manufacturer, answer telephone calls
for a call centre or write software for a
high-tech company.
Note: Students under the age of 18 who
are employed as homeworkers must be
paid the homeworkers’ minimum wage.

Calculating General Minimum Wage

Example: Julia worked 37.5 hours in one week. She is paid on a weekly basis. The minimum
wage applicable to Julia is $11.40 per hour.
Since compliance with minimum wage is based on pay periods, Julia must earn at least
$427.50 (37.5 hours × $11.40 per hour = $427.50) in this work week.

IMPORTANT NOTE: Eating periods are not included when counting how many hours
an employee works in a week.

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Calculating Minimum Wage for Those on Commission
As in the case of most other employees, if an employee's pay is based completely or partly on
commission, and the employee’s sales or offers to purchase goods or services are normally
made at the employer’s place of business (or the employee is a route salesperson), the total
amount paid for a pay period divided by the total hours the employee worked must equal at
least the minimum wage.
Example: Luba works on commission and has a weekly pay period. One week, she earned
$150 in commission and worked 25 hours. The minimum wage is $11.40 an hour.
The minimum wage ($11.40) multiplied by the number of hours worked in the pay period (25
hours) is $285.00. Luba is owed the difference between her commission pay ($150) and the
required regular pay at the minimum wage rate ($285.00). Luba's employer owes her
$135.00.

IMPORTANT NOTE: The calculation is more complicated where overtime hours are
worked. Industry-specific and job-specific exemptions and special rules may apply to
some salespeople who earn commission. Please see the Special Rule Tool for details
(available at Ontario.ca/ESAtools).

Minimum Wage: Room and Board Provision

For the purposes of ensuring that the applicable minimum wage has been paid to an
employee, an employer can take into account the provision of room or board (meals). Room
and board will be deemed to have been paid as wages only if the employee has received the
meals or occupied the room.
Example: The amounts that are designated “paid to the employee” for room and board are
calculated as a value on top of their wages (not deducted). For example, if Sam gets paid
$381.30 per week and receives a private room and board, which is valued at $85.25, then he
is deemed to be making $466.55 per week for purposes of determining whether he has been
paid at least the minimum wage.
Calculating whether minimum wage has been paid: $466.55 per week/37 hours = $12.61
per hour.
Therefore, Sam is considered to have been paid at least the general minimum wage ($11.40
per hour).
When an employer is providing room and/or board (i.e. meals), the following dollar equivalents
are considered to be paid as wages when assessing the employer’s compliance with minimum
wage.
Domestic Workers
• Private room - $31.70 a week

• Non-private room - $0

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 • Both room and board (i.e. meals):
i. $85.25 a week if the room is private
ii. $53.55 a week if the room is not private
Harvesters of fruit, vegetables or tobacco
• Serviced housing accommodation - $99.35 a week

• Unserviced housing accommodation (e.g. housing accommodation where the light,

fuel, heat, water, gas or electricity are not provided at the employer’s expense) -
$73.30 a week

• Room:
o $31.70 a week if the room is private
o $15.85 a week if the room is not private

• Board (i.e. meals) - $2.55 a meal, but not more than $53.55 a week

• Both room and board:

o $85.25 a week if the room is private
o $69.40 a week if the room is not private
All other employees
• Room:
o $31.70 a week if the room is private
o $15.85 a week if the room is not private

• Board (i.e. meals) - $2.55 a meal, but not more than $53.55 a week

• Both room and board:

o $85.25 a week if the room is private
o $69.40 a week if the room is not private

Miscellaneous Standards to Consider

Travel Time and Training Time
Travel time, time spent on mandatory training (for existing employees) and, in certain
uncommon circumstances, commuting time are considered to be hours of work for minimum
wage purposes. Employers can establish different rates for different types of work as long as
they are still complying with the minimum wage and overtime pay provisions.

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Employees Sent Home After Working Less Than Three Hours
When an employee who regularly works more than three hours a day is required to report to
work but works less than three hours, he or she must be paid whichever of the following
amounts is the highest:

• Three hours at a minimum wage, or

• The employee's regular wage for the time actually worked.

For example, if an employee who is a liquor server is paid $12 per hour and works only two
hours, he or she is entitled to three hours at minimum wage.
The liquor servers’ minimum wage is $9.90 per hour, and is calculated by multiplying $9.90 by
three hours of work, which totals $29.70. She is entitled to three hours at minimum wage
instead of two hours at her regular wage because $12 per hour x 2 hours of work equals only
$24.

IMPORTANT NOTE: The Three-Hour Rule does not apply to:

1. Students of all ages.
2. Employees whose regular shift is three hours or less.
3. Situations where the cause of the employee not being able to work at least
three hours was due to: fire, lightning, power failure, storms or similar cases
beyond the employer’s control that resulted in a work stoppage.

When the Minimum Wage Changes

If the minimum wage rate changes during a pay period, the pay period will be treated as if it
were two separate pay periods and the employee will be entitled to at least the minimum wage
that applies in each of those periods.

Minimum Wage Checklist

Employers and employees, please verify that:

 The type of work being performed is covered by the minimum wage standard under
the ESA and its regulations. Work not covered by (exempt from) minimum wage
requirements can be found in the Special Rule Tool (available at
Ontario.ca/ESAtools).

 When non-student employees are sent home after working less than three hours –
and they usually work longer – they are paid the greater of: their regular rate for the
time worked or three hours at minimum wage (except where there is a work
stoppage due to fire, lightening, power failure, storms or similar circumstance that is
beyond the employer’s control).

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  Total earnings in a pay period for employees paid completely or partly by
commission, or who are paid on a piece work basis, equal at least the minimum
wage for total hours worked.
Employers and employees, if the work being performed is covered by special rules, please
verify:

 Employees are being paid the correct minimum wage for that type of work.

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10. PUBLIC HOLIDAY PAY
These are days that most employees are entitled to have off work with pay under the
Employment Standards Act (ESA). While most employees are eligible for the public
holiday entitlement, some employees work in jobs that are not covered by the public
holiday provisions of the ESA. To see if this exemption applies to you, please see the
Special Rule Tool for details (available at Ontario.ca/ESAtools).

Public Holidays in Ontario

1. New Year’s Day 6. Labour Day
2. Family Day 7. Thanksgiving Day
3. Good Friday 8. Christmas Day
4. Victoria Day 9. Boxing Day (December 26)
5. Canada Day

IMPORTANT NOTE: While some employers give their employees a holiday on Easter
Sunday, Easter Monday, the first Monday in August or Remembrance Day, the
employer is not required to do so under the ESA.

What is Public Holiday Pay?

Public holiday pay is the amount of money a qualified employee is entitled to receive for a
public holiday. The amount of public holiday pay an employee is entitled to varies between
employees. It is based on the regular wages* the employee earned and any vacation pay that
was payable in the four work weeks prior to the work week in which the public holiday fell,
divided by 20.
* Regular wages are wages other than overtime pay, public holiday pay, vacation pay,
premium pay, termination pay and severance pay.
Public holiday pay does not necessarily amount to an employee’s regular daily earnings, due
to the nature of the calculation for public holiday pay. It is also important to note that receiving
time off and receiving public holiday pay are separate considerations. One does not
always guarantee an entitlement to the other.
Although vacation pay is not considered to be part of one’s regular wages, the calculation for
public holiday pay includes any vacation pay that was payable to the employee during any of
the four work weeks prior to the work week in which the public holiday fell.

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How Employees Qualify for Public Holiday Pay
Entitlement to public holidays begins as soon as an employee starts working. Employees who
qualify can take the day off work and be paid public holiday pay. To qualify, an employee must
work his or her last regularly scheduled day before and first regularly scheduled day after the
public holiday, or have reasonable cause for failing to do so. This will be explained in more
detail in the examples presented below.
In some situations, the public holiday pay entitlement might work out to be zero. It does not
matter if an employee is full time, part time, permanent or on a time-limited arrangement when
determining if he or she qualifies for the public holiday entitlements.

The ‘Last and First Rule’

Employees who fail, without reasonable cause, to work all their last regularly scheduled day of
work before the public holiday or all their first scheduled day of work after the public holiday
are not entitled to public holiday pay. (Note: This does not mean simply the last calendar day
before the public holiday and the first calendar day after the public holiday —it means the last
scheduled day of work before the public holiday and the first scheduled day of work after the
public holiday.)
For example, an employee who has asked for and received approval to take off the day before
the public holiday is still entitled. As the employer agreed to the employee being off the day
before the holiday, it would not be considered a scheduled day of work. Also, employees on
vacation, on leave or on a lay-off are also entitled as long as they worked their last scheduled
day before and their first scheduled day after the holiday, or had reasonable cause for failing to
do so.
If an employee fails to work either of those days, but had reasonable cause, he or she will still
qualify for the public holiday entitlements. An employee is generally considered to have
"reasonable cause" for missing work when something beyond his or her control prevents the
employee from working. It is the employee’s responsibility to show he or she has reasonable
cause for the absence.

How to Calculate the Four-Work Week Period Before the Work Week With a
Public Holiday
The "four work weeks before the work week with the public holiday" mentioned earlier does not
necessarily refer to the four calendar weeks immediately before the holiday. This period is
based on the employer's work week.
A work week is a recurring period of seven consecutive days that the employer has established
for the purpose of scheduling work. If the employer does not establish a work week, the default
is Sunday to Saturday.

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Example of Work Schedule
Suppose your work week runs from Thursday to Wednesday. Christmas Day falls on a
Tuesday. The four work weeks you would use to calculate public holiday pay for Christmas
Day are the four weeks counting backwards from the Wednesday before Christmas Day
(December 25):

Calendar Illustrating a Work Schedule

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

November 19 20 21 22 23 24
18
Week 1 Week 1 Week 1

25 26 27 28 29 30 December
1
Week 1 Week 1 Week 1 Week 1 Week 2 Week 2
Week 2

2 3 4 5 6 7 8
Week 2 Week 2 Week 2 Week 2 Week 3 Week 3 Week 3

9 10 11 12 13 14 15
Week 3 Week 3 Week 3 Week 3 Week 4 Week 4 Week 4

16 17 18 19 20 21 22
Week 4 Week 4 Week 4 Week 4

23 24 25 26 27 28 29

30 31

In this example, the employee’s regular wages and his or her vacation pay with respect to the
four work weeks indicated by the shaded area (November 22 to December 19) would be used
to calculate public holiday pay.

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How to Calculate Public Holiday Pay
On the following few pages, examples are given of holiday pay calculations. These
descriptions and examples are intended to help you quickly determine the type of situation you
have and how to calculate each type of public holiday payment arrangement. The Public
Holiday Calculator (available at: Ontario.ca/ESAtools) can help you.
Example 1: A Typical Case
Iryna works five days a week and earns $100 a day. She worked her last regularly scheduled
work day before the public holiday and her first regularly scheduled day after the holiday. She
receives her vacation pay when her vacation is taken. She was not on vacation during the four
work weeks leading up to the public holiday.
Calculating her public holiday pay:
1. Iryna’s regular wages are calculated:

• $100 per day x 5 days = $500 per week

• $500 per week x 4 work weeks = $2,000

2. Iryna earned $2,000 of regular wages in the four work weeks before the public holiday.

• No vacation pay is owed because she only receives vacation pay when she
takes her vacation. Because she was not on vacation during the four work week
period, she is not entitled to vacation pay.
3. Finally, her total wages earned and vacation pay payable are added together and
divided by 20.

• $2,000 + $0 = $2,000

• $2,000 ÷ 20 = $100
Therefore, Iryna is entitled to $100 in public holiday pay.
Example 2: When vacation time is involved
Brock works five days a week and earns $100 a day. He was on vacation for two of the four
work weeks before the work week in which the public holiday fell. He received $1,000 in
vacation pay in those two weeks and his regular wages in the other two weeks during the four
work weeks prior to the work week with the public holiday. Brock worked his last regularly
scheduled work day before the public holiday and his first regularly scheduled work day after
the holiday.
Calculating his public holiday pay:
1. Brock’s regular wages are determined:

• $100 per day x 10 days = $1,000

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 2. The amount of vacation pay payable is determined.

• $1,000 in vacation pay was payable to Brock in the four work weeks prior to the
work week with the public holiday.
3. Finally, his total wages earned and vacation pay payable are added together and
divided by 20.

• $1,000 (regular wages) + $1,000 (vacation pay payable) = $2,000

• $2,000 ÷ 20 = $100
Therefore, Brock is entitled to $100 in public holiday pay.
Example 3: Where vacation pay is included in every pay cheque
Bert earns $1,500 in regular wages in the four work weeks prior to the work week with the
public holiday. He and his employer have agreed in writing that he will receive 4% vacation pay
on each pay cheque (see Chapter 10 for information on when this is acceptable).
Calculating his public holiday pay:
1. Bert makes $1,500 in regular wages.
2. The amount of vacation pay payable is calculated:

• $1,500 x 4% = $60
3. Finally, his regular wages earned and vacation pay payable are added together and
divided
by 20.

• $1,500 (regular wages) + $60 (vacation pay) = $1,560

• $1,560 ÷ 20 = $78
Therefore, Bert is entitled to $78 in public holiday pay.
Example 4: When an employee is on a leave
Zoe usually works five days a week, earning $100 a day. She receives vacation pay before she
goes on vacation. On June 10, she went on a 17-week pregnancy leave, followed by a 35-
week parental leave. During her leaves, she was not paid wages or vacation pay. She received
maternity and parental benefits from the federal Employment Insurance program, but these
benefits are not considered wages.
Zoe is entitled to public holiday pay for the public holidays that fell during her leave as long as
she:

• worked her last regularly scheduled day before her leave; and

• her first regularly scheduled day after her leave, or

• had reasonable cause for failing to do so.

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Calculating her public holiday pay:
1. Zoe went on leave June 10 and only worked seven days during the four work weeks
before the Canada Day public holiday. Her regular wages earned are calculated:

• $100 per day x 7 days = $700

2. Her vacation pay payable is calculated:

• No vacation pay is owed because she had no vacation pay payable during the
four work week period.
3. Finally, her regular wages earned and vacation pay payable are added together and
divided by 20.

• $700 (regular wages) + $0 (vacation pay) = $700

• $700 ÷ 20 = $35
Therefore, Zoe is entitled to $35 in public holiday pay for the Canada Day public holiday.
However, she does not receive any public holiday pay for other holidays that fell during her
leave because she did not earn wages or have vacation pay payable during the four work
weeks before each of those holidays.
Example 5: When an employee is on a layoff throughout the four work weeks preceding
the holiday
Eugene usually works five days a week, earning $100 per day. He was placed on temporary
layoff on November 15. During his layoff, Eugene was not paid wages or vacation pay. He
received Employment Insurance benefits during this time, but these benefits are not
considered wages.
Eugene was recalled to work on December 27. He is entitled to public holiday pay for
Christmas Day and Boxing Day as long as he:

• worked his last regularly scheduled day before the layoff; and

• his first regularly scheduled day after the layoff, or

• had reasonable cause for failing to do so.

Calculating his public holiday pay:
Because Eugene did not earn any wages or have any vacation pay payable in the four work
weeks before those two public holidays, he is entitled to $0 in public holiday pay.

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How to Calculate Public Holiday Pay Plus Premium Pay
A public holiday falls on one of Heather’s normal working days. She and her employer
have agreed in writing that she will work on the public holiday and that, instead of
getting a substitute holiday, she will be paid public holiday pay plus premium pay for all
the hours she works on the holiday. (Note: Generally speaking, if a public holiday falls
on a day that is ordinarily a working day for an employee, the employee is entitled to the
day off with public holiday pay; if instead the employee agrees in writing to work on the
day, the employee is entitled to be paid at his or her regular rate for the hours worked
and to a substitute day off work with public holiday pay, or, if the employee and
employer agree in writing, to public holiday plus premium pay for the hours worked. In
certain industries and types of operations, the employer may require the employee work
on a public holiday that falls on a day that is ordinarily a working day; in that case, the
employer may—at the employer’s option—either pay the employee at his or her regular
rate for the hours worked and give the employee a substitute day off work with public
holiday pay or give the employee public holiday pay plus premium pay for the hours
worked. For more information on public holidays and substitute holidays, see the
“Public Holidays” chapter in Your Guide to the Employment Standards Act, 2000
available at: Ontario.ca/ESAguide.)
Heather regularly works eight hours a day, five days a week. Her regular hourly pay rate is
$12. She has worked on all her scheduled work days in the four work weeks before the public
holiday. She receives her vacation pay before she takes vacation and was not on vacation
during the four work weeks before the public holiday. She works eight hours on the public
holiday.
Example Public Holiday Pay Calculation
1. Her regular wages in the four work weeks before the public holiday are calculated:

• 8 hours per day × $12 per hour = $96 per day

• $96 per day × 5 days = $480 per week

• $480 × 4 work weeks = $1,920

• Heather earned $1,920 in the four work weeks before the public holiday.
2. Amount of vacation pay payable with respect to the four work week period is calculated:

• She had no vacation payable during this period because Heather gets paid her
vacation pay before she takes vacation, and she was not on vacation during the
four work week period.
3. Her total regular wages earned plus vacation pay payable is then divided by 20:

• ($1,920 + $0) ÷ 20 = $96

Therefore, Heather is entitled to $96 in public holiday pay.

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Example Premium Pay Calculation
4. Finally, the premium pay owing to Heather for her work on the public holiday is
calculated:

• $12 per hour × 1½ = $18

• $18 per hour × 8 hours worked = $144

Therefore, Heather is also entitled to $144 in premium pay. Her total entitlement in respect of
the public holiday will be $240 ($96 + $144).

Public Holidays on Working Days and Non-Working Days

The rules regarding public holidays vary depending on whether a public holiday falls on:

• a day that is ordinarily a working day for the employee;

• a day that is not ordinarily a working day for the employee or that is a day on which the
employee is on vacation.
Public Holiday on a Working Day
If the holiday falls on a day that would ordinarily be a working day for the employee, he or she
is entitled to have the day off with public holiday pay (subject to the “last and first rule”).
The employer and employee may agree in writing that the employee will instead work on the
public holiday. In that case, the employee is entitled to his or her regular wages for the hours
he or she worked on the day, plus a substitute day off with public holiday pay. However, the
employer and employee can instead agree in writing to a pay plus premium pay arrangement.
This means that the employee will be entitled to public holiday pay plus premium pay for each
hour worked on the holiday.

IMPORTANT NOTE: Premium pay is 1½ the employee’s regular rate of pay for an hour
of work. (Note that any hours worked on a public holiday for which an employee
receives premium pay are not counted for overtime pay purposes.)

Substitute Days
Where a day is substituted for a public holiday, the substitute day is treated as if it were the
public holiday. Generally speaking, the day that is substituted must be no more than three
months after the holiday. However, the employer and employee can agree in writing to a later
day, provided that it is no more than 12 months after the public holiday. If employment ends
before the substitute day, the employer must pay the employee public holiday pay for the day
within seven days after employment ends or the day that would have been the employee’s
next pay day, whichever is later.

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Public Holiday on Non-Working Day
If the holiday falls on a day that would not ordinarily be a working day for the employee or a
day when the employee is on vacation, he or she is entitled to a substitute day off with public
holiday pay, provided that the employee is not on pregnancy or parental leave, or on a
temporary layoff. However, the employer and employee may agree in writing that the
employee will instead be paid public holiday pay for the day (in which case there is no
substitute day off). In either case, the “last and first rule” will apply.
If the holiday falls on a day that would not ordinarily be a working day for the employee and the
employee is on pregnancy or parental leave, or on temporary layoff, the employee’s only
entitlement is to public holiday pay for the day. Note that the “last and first rule” will apply.
The employer and employee may agree in writing that the employee will work on the public
holiday even though it is not ordinarily a working day or the employee is on vacation on that
day. In that case, the employee is entitled to his or her regular wages for the hours worked on
the day, plus a substitute day off with public holiday pay. However, the employer and employee
can instead agree in writing to a pay plus premium pay arrangement under which the
employee will be entitled to public holiday pay plus premium pay for each hour worked on the
holiday. If there is an agreement to work on the holiday and the employee failed to work some
or all of the holiday, the “failure to work” without reasonable cause rules discussed below will
apply.
Special Rule: Hospitals; Hospitality Industry; Continuous Operations
Some employees can be required to work on a public holiday that falls on a working day, even
if they are not exempted from the ESA’s public holiday provisions, provided they are not on
vacation. This will be the case if the employee works in a hospital, hotel, motel, tourist resort,
restaurant, tavern or a continuous operation (A “continuous operation” is one that operates 24
hours a day and either never shuts down or shuts down only once a week.)

IMPORTANT NOTE: The right of a hospital, hotel, motel, tourist resort, restaurant,
tavern or continuous operation employer to require employees to work on a public
holiday is subject to the employee's rights under the Human Rights Code
(http://www.ontario.ca/laws/statute/90h19). It is also subject to any rights he or she
may have under the employment contract. Some retail employees have the right to
refuse to work on a public holiday, even if they are employed in a continuous
operation (e.g., a 24-hour convenience store). See Your Guide to the Employment
Standards Act, 2000 for more information, available at: Ontario.ca/ESAguide

If an employee of a hospital, hotel, motel, tourist resort, restaurant, tavern or continuous

operation is required to work on a holiday, he or she will be entitled either to:

• his or her regular wages for the hours worked that day, plus a substitute day off with
public holiday pay, OR

• public holiday pay plus premium pay for each hour worked on the holiday.
The choice is the employer’s.

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Where a hospital, hotel, motel, tourist resort, restaurant, tavern or continuous operation
employer requires an employee to work on a holiday, but he or she fails to work some or all of
that holiday, the “failure to work” without reasonable cause rules discussed in the next section
will apply.

“Failure to Work” Rules (Employee Fails to Work Some or All of a Public

Holiday Shift)
There are special rules that apply if the employee agreed to work on a public holiday (or in the
case of a hospital, hotel, motel, tourist resort, restaurant, tavern or continuous operation, if the
employee was required to work on the public holiday) and then failed to work some or all of the
holiday:

• If the employee failed to do any work on the holiday and did not have reasonable cause,
the employee has no entitlement.

• If the employee failed to do any work on the holiday but did have reasonable cause, the
employee is entitled to a substitute day off with public holiday pay or, if there was a “pay
plus premium pay” agreement, the employee will be entitled to public holiday pay for the
day. Note that the “last and first” rule still applies. This means that the employee will
have no entitlement if he or she fails without reasonable cause to work the last regularly
scheduled day of work before – or first regularly scheduled day of work after – the
holiday.

• If the employee performed some, but not all, of the work that he or she was to have
performed on the holiday and did not have reasonable cause for failing to perform all of
the work, the employee is entitled to premium pay for the time worked on the holiday –
but nothing more.

• If the employee performed some but not all of the work that he or she was to have
performed on the holiday but did have reasonable cause for failing to perform all of the
work, the employee is entitled to be paid at his or her regular rate for the time worked
and a substitute day off with public holiday pay. If there was a “pay plus premium pay”
arrangement, the employee is entitled to public holiday pay for the day plus premium
pay for the time worked. Note that the “last and first” rule applies. This means that if the
employee fails without reasonable cause to work the entire last regularly scheduled day
of work before – or the first regularly scheduled day of work after – the holiday, the
employee is entitled to premium pay for the time worked on the holiday, but nothing
more.

• If the employee performed all of the work that he or she was to have performed on the
holiday, but fails without reasonable cause to work all of the last regularly scheduled
day of work before or first regularly scheduled day of work after the holiday, he or she is
entitled to premium pay for the time worked on the holiday – but nothing more.

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Employees Who Perform both Covered and Exempt Work
Some employees perform more than one kind of work for an employer. Some of this work
might be covered by the public holiday part of the ESA, while another kind of work might be
exempt.
If an employee performs both kinds of work, he or she is eligible for the public holiday
entitlement if at least half of the work performed in the work week of the public holiday is work
that is covered.
Example
Kris works for a taxi company as both a taxi driver and as a dispatcher. Cab driving is exempt
from the public holiday part of the ESA, while dispatching is covered. In the work week that
Canada Day fell, at least half of the work Kris did was as a dispatcher. She is therefore entitled
to public holiday entitlements for Canada Day.

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11. VACATION WITH PAY
Under the Employment Standards Act (ESA), most employees are entitled to receive
two weeks of vacation for each 12 months of employment, whether or not active.
Most employees are also entitled to vacation pay equal to at least four per cent of the
wages earned during that year. However, some employees work in jobs that are not
covered by the ESA’s vacation with pay provisions. To see if this exemption applies
to you, please see the Special Rule Tool (available at Ontario.ca/ESAtools).

Vacation Time and Vacation Pay

This employment standard has two parts: vacation time and vacation pay. Employees are
entitled to two weeks of vacation time after each 12-month vacation entitlement year.
Ordinarily, a vacation entitlement year is a recurring 12-month period beginning on the date of
hire.
If the employer has established an alternative vacation entitlement year that begins on a date
other than the date of hire, the employee is also entitled to a pro-rated amount of vacation time
for the period (called a "stub period") that precedes the alternative vacation entitlement year.
Vacation pay must be at least four per cent of the wages (excluding any vacation pay) earned
in the 12-month vacation entitlement year or stub period (where that applies).

Key Definitions
• Vacation Entitlement Year: The 12-month period over which employees earn vacation.

• Standard Vacation Entitlement Year: A recurring 12-month period beginning on the

date of the employee’s hire.

• Alternative Vacation Entitlement Year: A recurring 12-month period chosen by the

employer to begin on a date other than the employee’s date of hire (e.g., employee
hired June 1, but employer selects alternative vacation entitlement year commencing
January 1).

• Stub Period: Period between:

o Date of hire and beginning of the first alternative vacation entitlement year; or
o End of a standard vacation entitlement year and the beginning of an alternative
vacation entitlement year where the employer switches from the former to the
latter.
 Example: if an employer has chosen an alternative vacation entitlement
year that runs January 1 to December 31, and the employee was hired on
September 1, the stub period will be September 1 to December 31.

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 IMPORTANT NOTE: An employee’s vacation entitlement year and stub period
includes time the employee spends away from work because of layoff, sickness or
injury, leaves of absence (e.g., pregnancy, parental, family medical, etc.), or any other
approved leaves where there is no break in the employment relationship.

Vacation Time
Employees earn a minimum of two weeks’ vacation time upon completion of every 12-
month vacation entitlement year. The Employment Standards Act (ESA) does not provide
for any increases to the two-week vacation time entitlement, although an employee’s contract
of employment or collective agreement may do so.
If the vacation entitlement year is a standard vacation entitlement year, the employee will be
entitled to a minimum of two weeks of vacation time after the 12 month-period that started with
his or her date of hire, and after each future 12-month period.
If an employer establishes an alternative vacation entitlement year, the employee will be
entitled to a minimum of two weeks of vacation time after each alternative vacation entitlement
year. The employee will also be entitled to a pro-rated amount of vacation time for the stub
period preceding the start of the first alternative vacation entitlement year.
An employee's contract of employment or collective agreement may provide a greater
right or benefit with respect to vacation time or pay. An employee who does not complete
either the full vacation entitlement year or the stub period (if any) does not qualify for vacation
time under the ESA. However, employees earn vacation pay as they earn wages. So if an
employee who is paid by the hour works even just one hour, he or she is still entitled to four
per cent of the hour's wage as vacation pay.

How to Calculate Stub Period Vacation Entitlements

Example 1: When the employee has a regular work week
The vacation time entitlement for a stub period is calculated as two weeks multiplied by the
ratio (R) of the length of the stub period to 12 months.
• Employee has a regular work week.
• Employee hired September 1 and alternative vacation entitlement year begins January
1.
• Stub period is September 1 to December 31 (four months).
Calculating Entitlement
• R = 4 months/12 months
• 2 weeks x 4/12 = 2/3 of a week.
Therefore, the employee is entitled to 0.67 of a week off in vacation for the stub period.
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Example 2: When the employee does not have a regular work week
The vacation entitlement for a stub period is calculated as two weeks multiplied by the average
number of days worked per work week during the stub period (A) multiplied by the ratio of the
length of the stub period to 12 months (R).
• Employee does not have a regular work week.
• Employee hired September 1 and alternative vacation entitlement year begins January
1.
• Stub period is September 1 to December 31. There are 17 work weeks in that stub
period.
• The employee worked a total of 51 days in those 17 work weeks.
Calculating Entitlement
• A = 51 days/17 work weeks
• R = 4 months/12 months
• 2 weeks x [(51/17) x (4/12)] = 2 days

Deadlines for Giving Vacation

The vacation time earned with respect to a completed vacation entitlement year or a stub
period must be given within 10 months following the completion of the vacation
entitlement year or stub period. An employer has the right to schedule when employees take
vacation, subject to their obligation to ensure the vacation time taken before the end of that 10-
month period.
Example
Riley was hired on February 24, 2005. His employer established an alternative vacation
entitlement year of July 1 to June 30. The pro-rated amount of vacation time that Riley earned
for the stub period of February 24, 2005 to June 30, 2005 must be taken within 10 months of
the end of the stub period (that is, within 10 months of June 30, 2005). The vacation time Riley
earned for the entitlement year July 1, 2005 to June 30, 2006, would have to be taken within
10 months of the end of that vacation entitlement year (i.e., within 10 months of June 30,
2006).
If the deadline for giving a vacation comes up when an employee is on leave (e.g. pregnancy,
parental, family medical, etc.), the vacation must be taken when the leave ends or, if the
employer and the employee agree in writing, at a later date.
Likewise, if an employee’s contract requires that his or her vacation must be taken within a
specified period or be lost, and that period ends while the employee is still on leave, the
employee may, despite the contract, postpone the vacation until the leave ends or, if the
employer and employee agree in writing, until an even later date.

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Foregoing Vacation
An employee can give up some, or all, of his or her earned vacation time with the employer's
written agreement and the approval of the Ministry of Labour’s Director of Employment
Standards. This approval does not affect an employer's obligation to pay the employee
vacation pay; employees may give up vacation time, but not the right to vacation pay.

Scheduling Vacation Time Earned from a Vacation Entitlement Year

IMPORTANT NOTE: Generally, employers are required to schedule the vacation

time earned in each vacation entitlement year in a block of two weeks or in two
one-week blocks. However, if the employee makes a written request and the
employer agrees in writing, he or she can schedule the vacation in shorter periods.
In that case, it is necessary to calculate the number of single vacation days the
employee is entitled to.

Example 1: When the employee has a regular work week

The employer takes the number of days in the employee's usual work week and multiplies that
number by two.
Calculating the entitlement to single vacation days earned:

• The employee regularly worked Monday, Wednesday and Friday, or three days a week
in the preceding vacation entitlement year.

• The employee is therefore entitled to six single vacation days in respect of that vacation
entitlement year (i.e., 3 days x 2 = 6 days).
Example 2: When the employee does not have a regular work week
The employer calculates the average number of days worked in each week in the most
recently completed vacation entitlement year and then multiplies that number by two.
Calculating the entitlement to single vacation days earned:
• The employee worked a total of 149 days in the preceding vacation entitlement year.

• There are 52.18 weeks per year.

• The average number of days worked per week in the year would be:
149 days ÷ 52.18 weeks per year = 2.86 days

• The single vacation days the employee would be entitled to for that year would be:
2 × 2.86 days or 5.72 days of vacation

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How to Schedule Vacation Time Earned with Respect to a Stub Period
The vacation time earned with respect to a stub period is calculated as single days based on
the formulas set out under the heading Calculating Stub Period Vacation Entitlements in the
chapter on “Vacation” in Your Guide to the Employment Standards Act, 2000 (available at
Ontario.ca/ESAguide).
If the amount of vacation time earned is between two and five days, the vacation days must be
taken consecutively, unless the employee requests in writing that they not be taken
consecutively and the employer agrees in writing.
If the amount of vacation time earned with respect to the stub period is more than five days,
the first five days must be taken consecutively. Any additional days must be taken either
together with the first five or in a separate period of consecutive days, unless:

• the employee requests in writing that the vacation days not be taken in shorter periods;
and

• the employer agrees in writing.

Vacation Pay
For vacation pay, employees must receive a minimum of four per cent of the wages they
earned in the 12-month vacation entitlement year or stub period for which the vacation is being
given.
Example
Suppose Janice earned gross wages of $16,000 in her vacation entitlement year. She is
entitled to four per cent of $16,000 as vacation pay, or $640.
If an employee's contract or collective agreement provides a better vacation benefit than the
minimum required, the employee may be entitled to a higher percentage of his or her gross
earnings for vacation pay. For example, an employee might be entitled under his or her
contract to three weeks’ vacation, with six per cent of gross earnings for vacation pay.
The wages on which vacation pay is calculated include, but are not limited to:
• Regular earnings, including commissions;

• Bonuses and gifts that are non-discretionary or are related to hours of work, production
or efficiency;

• Overtime pay;

• Public holiday pay;

• Termination pay;

• Allowances for room and board

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They do not include vacation pay or severance pay (even though these are considered
“wages” under the ESA). Note also that the following amounts, which are not considered
“wages” under the ESA, are not included in the calculation of vacation pay:

• Tips and gratuities

• Discretionary bonuses and gifts that are not related to hours of work, production or
efficiency (e.g., a Christmas bonus unrelated to performance)

• Expenses and traveling allowances

• Living allowances

• Contributions made by an employer to a benefit plan and payments from a benefit plan
(e.g., sick pay) that an employee is entitled to

• Federal employment insurance benefits

When to Pay Vacation Pay
In most cases, the vacation pay earned during a completed vacation entitlement year or stub
period must be paid to an employee in a lump sum before he or she takes the vacation time
earned. There are four exceptions:
1. When the vacation time is taken in periods of less than one week. In this case, the
employee must be paid vacation pay on or before the payday for the period in which the
vacation falls.

• For example, Alvaro is taking vacation from January 1 to January 3, and the
normal payday that covers this period is January 30. Alvaro must be given his
vacation pay on or before January 30.
2. When the employee has agreed in writing that his or her vacation pay will be paid on
each pay cheque as it accumulates. In this case, the employee's wage statement must
show clearly the amount of the vacation pay being paid. This amount must also be
shown separately from any other amounts paid.

• Alternatively, the employer can provide a separate wage statement for the
vacation pay being paid.
3. If the employee agrees in writing, the employer can pay the vacation pay at any time
agreed to by the employee.
4. If the employer pays the employee his or her wages by direct deposit into an account at
a financial institution.

• In this case, the employee must be paid vacation pay on or before the payday for
the period in which the vacation falls.

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When Employment Ends
When employment ends (e.g., when an employee quits, or his or her employment is
terminated), an employee is entitled to vacation pay that he or she has earned and has not yet
been paid out. In some cases, this would include vacation pay earned during a previous
vacation entitlement year or stub period, as well as the vacation pay earned during the current
vacation entitlement year or stub period. Remember that vacation pay is payable on
termination pay, but not on severance pay.

IMPORTANT NOTE: The unpaid vacation pay must be paid not later than the seventh
day after the employment ended or the day that would have been the employee's next
pay day, whichever of those days is later.

Paying Vacation Pay Owing When Employment Ends

Example
Jenna was hired on April 1, 2012, and had a standard vacation entitlement year. She was paid
biweekly. As of March 31, 2013, she had earned two weeks of vacation time and four per cent
of the wages earned in the vacation entitlement year as vacation pay. Her employer scheduled
her vacation for the two-week period beginning June 1, 2013, and her vacation pay was to be
paid prior to the start of that vacation. However, Jenna quit her employment on May 15, 2013.
When she quit, her employer was required to pay her the vacation pay earned in the vacation
entitlement year April 1, 2012, to March 31, 2013, plus the vacation pay earned in her last
(incomplete) vacation entitlement year (being four per cent of the wages she earned between
April 1, 2013, and May 15, 2013). May 17, 2013 would have been Jenna’s next pay day, while
May 22 is the seventh day after her employment ended. Since May 22 is later than May 17,
Jenna’s vacation pay must be paid by no later than May 22, 2013.

Vacation and Leaves of Absence

Because the employment relationship continues during a leave of absence (e.g., pregnancy,
parental, family medical, etc.), the time on leave counts toward the completion of a
vacation entitlement year or stub period. For example, an employee on leave for some or
even all of a vacation entitlement year would still have earned a full two weeks of vacation time
by the end of that year. The vacation pay earned during that vacation entitlement year would
be a minimum of four per cent of any wages actually earned during the year (which would be
nil if the employee was on leave for the entire year and the leave was unpaid).
A contract between an employer and employee may stipulate that paid vacation is earned
through active service (e.g., 1.5 paid vacation days for each month of service or three weeks
paid vacation for each year of service). Such a contract may not allow an employee to earn
vacation time or pay while on leave. However, because an employer and employee are not
permitted to contract out of a minimum employment standard, the employer must ensure the
employee receives the greater of:

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 • the vacation time and pay that was earned under the contract; or

• the minimum vacation time and vacation pay he or she would have earned under
the ESA.

Contract of Employment Provides Greater Right to Vacation Based on

Active Service
Ingrid's contract of employment provides that she earns two paid vacation days for every
month of active service. In other words, vacation time and vacation pay are earned
together through active service. Ingrid is on a pregnancy and then parental leave for a total
of six months of her vacation entitlement year.
At the end of her vacation entitlement year, she has earned 12 paid vacation days under her
employment contract. Because she regularly works five days a week, she has earned enough
vacation time under her contract to exceed the two-week minimum required under the ESA
(which would have amounted to only 10 vacation days). In addition, the wages paid as a
result of having 12 days of paid vacation exceeds four per cent of the wages she had
actually earned during the vacation entitlement year. (Since Ingrid’s leave was unpaid,
she earned wages during only six months of the year; 4% of those wages would be
roughly equal to 5 days’ wages.)

Employees Must Receive at Least Two Weeks of Vacation Time (and Four-
Per Cent in Vacation Pay)
Tony earns three weeks of paid vacation for every year of active service. He is on a parental
leave for eight months of his vacation entitlement year. Under his contract of employment,
Tony earned one-third of the three weeks’ paid vacation he would otherwise earn in a year. In
other words, he earned one week of paid vacation for the vacation entitlement year. However,
his employer must ensure that Tony receives at least the minimum ESA vacation entitlements
of two weeks’ of vacation time and four per cent vacation pay. The employer will, therefore,
have to provide Tony with another week of vacation time and ensure the week of
vacation pay earned under the contract is not less than four per cent of the wages he
had actually earned in the vacation entitlement year. (In this case, it is unlikely that any
more vacation pay is due, as 4% of the wages earned in a four-month period will generally be
less than one week’s pay.)

Vacation Records
Employers are required to keep records for each employee of:

• the vacation time earned since the date of hire, but not taken before the start of the
vacation entitlement year;

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 • the vacation time earned during the vacation entitlement year; the vacation time taken
(if any), during the vacation entitlement year;

• the balance of vacation time remaining at the end of the vacation entitlement year;

• the vacation pay paid during the vacation entitlement year;

• the amount of wages on which the vacation pay was calculated and the period of time to
which those wages relate.
Where there was a “stub period” (see above), the employer is also required to keep records for
each employee of:

• the vacation time earned during the stub period;

• the vacation time (if any) taken during the stub period;

• the vacation time (if any) earned but not taken during the stub period;

• the vacation pay paid during the stub period;

• the amount of wages on which the vacation pay was calculated and the period of time to
which those wages relate.
These records must be made no later than seven days after the start of the next
vacation entitlement year (or first vacation entitlement year if the records relate to a stub
period) or the first pay day after the stub period or vacation entitlement year ends, whichever is
later.
Employees may request a statement in writing containing the information in the employer's
vacation records. The employer is required to provide the information no later than the later of:

• seven days after the request; or

• the first pay day after the employee makes the request subject to the following:
If the employee asks for information concerning the current vacation entitlement year or stub
period, the employer is required to provide the information no later than the later of:

• seven days after the start of the next vacation entitlement year (or first vacation
entitlement year in the case of a stub period); or

• the first pay day after the stub period or vacation entitlement year ends.

IMPORTANT NOTE: The employer is required to provide the information with respect
to a vacation entitlement year or stub period only once.

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If the employee has agreed in writing that vacation pay that accrues during a pay period will be
paid on the pay day for that pay period, the employer does not have to:

• make or keep records of the amount of vacation pay paid during a vacation entitlement
year or stub period, or the amount of wages on which that vacation pay was based; or

• provide a statement setting out vacation pay and vacation time information contained in
the employer’s records, as discussed above.
Reminder: In this situation, the employer needs to:

• report the vacation pay that is being paid separately from the amount of other wages on
the regular wage statement; or

• provide a separate statement setting out the vacation pay that is being paid.
The employer must also keep a record of the vacation pay information set out in the wage
statement or in a separate statement, as the case may be.

Vacation Pay Checklist

Employers, please verify that:

 Employees receive a minimum of two weeks of vacation time per entitlement year,
plus any applicable stub period vacation time.

 Employees receive vacation pay in the amount of at least four per cent of all gross
wages (less vacation pay and severance pay paid) earned during the 12-month
entitlement period and/or stub period (if applicable).

 Active and inactive employment is included when calculating the vacation

entitlement year and stub period.

 The minimum two weeks of vacation time earned during an entitlement year is given
to the employee within 10 months of the end of the entitlement year.

 Vacation time earned during a stub period is given to the employee within 10 months
of the end of the stub period.

 The vacation is taken in full weeks unless shorter periods of vacation time are
requested in writing by the employee and agreed to in writing by the employer.

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  Vacation pay is paid:

• In a lump sum before the vacation begins or if taking the vacation in less than
complete weeks, on or before the pay day for which the vacation falls.

• On each pay day, if agreed to in writing by the employee.

• On or before the pay day for which the vacation falls (if paying by direct deposit).

• At some other time agreed to in writing by the employee.

 When paying vacation pay, the employee receives a wage statement setting out
vacation pay separately or receives a separate wage statement with that information.

 Any unpaid vacation pay is paid to the employee within seven days of his or her
employment ending, or on the date that would have been the employee’s next
regular pay day, whichever is later.

 Records of vacation time and vacation pay are made within seven days of the
end of the employee’s vacation entitlement year.

 Records of vacation time and vacation pay are kept for three years after they
are made.

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12. TERMINATION AND SEVERANCE
An employee is entitled to notice of termination (or termination pay instead of notice) if he or
she has been continuously employed for at least three months. A person is considered
“employed” not only while he or she is actively working, but also during any time in which he or
she is not working but the employment relationship still exists (for example, time in which the
employee is off sick or on leave or on lay-off).
The amount of notice to which an employee is entitled depends on his or her “period of
employment”. An employee’s period of employment includes not only all time while the
employee is actively working but also any time that he or she is not working but the
employment relationship still exists, with the following exceptions:

• if a lay-off goes on longer than a temporary lay-off, the employee’s employment is

deemed to have been terminated on the first day of the lay-off—any time after that does
not count as part of the employee’s period of employment, even though the employee
might still be employed for purposes of the “continuously employed for three months”
qualification;

• if two separate periods of employment are separated by more than 13 weeks, only the
most recent period counts for purposes of notice of termination.
It is possible, in some circumstances, for a person to have been “continuously employed” for
three months or more and yet have a period of employment of less than three months. In such
circumstances, the employee would be entitled to notice because an employee who has been
continuously employed for at least three months is entitled to notice, and the minimum notice
entitlement of one week applies to an employee with a period of employment of any length less
than one year.
The following chart specifies the amount of notice required:

Period of Employment Notice Required

Less than one year One week

One year or more but less than three years Two weeks

Three years or more but less than four years Three weeks

Four years or more but less than five years Four weeks

Five years or more but less than six years Five weeks

Six years or more but less than seven years Six weeks

Seven years or more but less than eight years Seven weeks

Eight years or more Eight weeks

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Note: Special rules determine the amount of notice required in the case of mass terminations –
where 50 or more employees’ employment is terminated at an employer's establishment within
a four-week period. For more information see the chapter on “Termination of Employment” in
Your Guide to the Employment Standards Act, 2000 (available at Ontario.ca/ESAguide).

Defining Termination of Employment

There are a number of expressions that describe ending employment. A few of them are "let
go," "discharged," "dismissed," "fired" and "permanently laid off."
In most cases, when an employer ends the employment of an employee who has been
continuously employed for at least three months, the employer must provide the employee with
written notice of termination. Alternatively, the employer could provide termination pay instead
of notice, or a combination of notice and termination pay (please see IMPORTANT NOTE
below).
Under the ESA, a person's employment is terminated if the employer:
1. Dismisses or stops employing an employee, including when an employee is no longer
employed due to employer bankruptcy or insolvency
2. Constructively dismisses* an employee and the employee resigns, in response, within a
reasonable time; and/or
3. Lays an employee off for a period that is longer than a temporary lay-off.
*For more information on constructive dismissals, see the chapter on “Termination of
Employment” in Your Guide to the Employment Standards Act, 2000 (available at
Ontario.ca/ESAguide).

IMPORTANT NOTE: If termination pay instead of notice or a combination of notice

and termination pay is given, the total amount of pay received must be equal to the
total amount that the employee would have received had full notice been given. The
Termination Tool (available at Ontario.ca/ESAtools), can help you determine the
amount of termination pay that may be owed.

If an employee has not been continuously employed for at least three months, there is no
obligation to provide either notice of termination or termination pay. An employer is not
required to give an employee a reason why his or her employment is being terminated. There
are, however, some situations where an employer is prohibited from terminating an employee's
employment even if the employer is prepared to give proper written notice or termination pay.
Example
An employer cannot end someone's employment (or penalize him or her in any other way) if
any part of the reason for the termination is based on the employee asking questions about, or
exercising a right under, the ESA, such as:

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 • refusing to work in excess of the daily or weekly hours of work maximums; or

• taking a leave of absence to which he or she is entitled.

This is called reprisal. A reprisal is a serious violation of the Act and can be costly for an
employer.
An employment standards officer could issue an order requiring reinstatement or
compensation for any loss that the employee suffers, or both. Please see the chapter on
“Reprisals” in Your Guide to the Employment Standards Act, 2000 (available at
Ontario.ca/ESAguide).

Requirements During the Statutory Notice Period: Termination

During the statutory notice period, an employer:

• must not reduce the employee's wage rate or alter any other term or condition of
employment;

• must continue to make required contributions to the employee's benefit plans; and

• must, for each week, pay the employee the wages he or she is entitled to (if in any week
the employee earns less than the amount of his or her regular wages for a regular work
week, he or she must still be paid the amount of his or her regular wages for a regular
work week.)
Regular Wages
These are wages other than overtime pay, vacation pay, public holiday pay, premium pay,
termination pay, severance pay and certain contractual entitlements.

IMPORTANT NOTE: For more information, see Employment Standards Act, s.5 (2):
Ontario.ca/laws/statute/00e41#BK7

Regular Work Week

For an employee who usually works the same number of hours every week, a regular work
week is a week of that many hours, not including overtime.
Some employees do not work the same number of hours every week or are paid on a basis
other than time. For them, regular wages for a regular work week is the average amount of
regular wages earned in the 12 weeks in which the employee worked preceding the date of
notice or, if no notice was given, the termination date.
An employer is not allowed to require an employee to take vacation during the statutory notice
period unless the employee, after receiving written notice of termination, agrees in writing
to take his or her vacation time during the notice period.

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How to Provide Notice
In most cases, notice of termination of employment must:

• be in writing;

• addressed to the employee; and

• provided to him or her:

o in person;
o by mail (if the method of mail delivery permits delivery to be verified);
o by fax or email (if the employee is equipped to receive fax or email);
o by courier; or
o in a sealed envelope at the employee’s residence with a person who appears to
be at least 16 years old.
There are special rules for providing notice of termination to employees whose employment
contract or collective agreement provides seniority rights, allowing an employee who is to be
laid off or terminated to displace (“bump”) another employee.
In that case, the employer may post a notice in a conspicuous part of the workplace, where it
will be seen by the employees, setting out the name(s), seniority, job classification and
proposed lay-off or termination date of the employee(s). The notice is considered to be notice
of termination, as of the date of the posting, to any employee who is bumped by the
employee(s) named in the notice.

IMPORTANT NOTE: This notice of termination must still meet the length of notice
requirements set out in the ESA.

Mass Termination
Special rules for notice of termination apply when the employment of 50 or more employees is
terminated at an employer's establishment within a four-week period. This is often referred to
as mass termination
Note that an establishment, with respect to an employer, means a location where the employer
carries on business. When the employer carries on business at more than one location,
separate locations are considered one establishment when:

• the separate locations are located within the same municipality, or

• one or more employees at a location have seniority rights that extend to the other
location under a written employment contract whereby the employee or employees may
displace ("bump") another employee of the same employer.

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If a mass termination occurs, the employer must complete and submit a Form 1 (Notice of
Termination of Employment, available at: Ontario.ca/ESAforms) to the Ministry of Labour’s
Director of Employment Standards. Notice of mass termination is not effective until the
Director of Employment Standards has received the employer’s completed Form 1. A
letter of acknowledgement is sent out to the employer when the completed Form 1 has been
received by the Director of Employment Standards.
In addition to providing employees with individual notices of termination (or a posted notice
where bumping is possible, as discussed above), the employer must post a copy of the Form 1
that was provided to the Director of Employment Standards in the workplace where it will come
to the attention of the employees, on the first day of the notice period.
The amount of notice employees must receive in a mass termination is not based on the
employees' length of employment, but on the number of employees whose employment is
being terminated in the same four-week period. An employer must give:
• 8 weeks’ notice if the employment of 50 to 199 employees is to be terminated.
• 12 weeks’ notice if the employment of 200 to 499 employees is to be terminated.
• 16 weeks’ notice if the employment of 500 or more employees is to be terminated.
For more information on mass termination, see the chapter on “Termination of Employment” in
Your Guide to the Employment Standards Act, 2000 (available at Ontario.ca/ESAguide).

Exceptions to the Mass-Termination Rules

The mass termination rules do not apply if:
1. the number of employees whose employment is being terminated represents not more
than 10 per cent of the employees who have been employed for at least three months at
the establishment; and
2. none of the terminations are caused by the permanent discontinuance of all or part of
the employer's business at the establishment.
Helpful Tips

• To see a more detailed discussion about notice of termination and termination pay, see
the chapter on “Termination of Employment” in Your Guide to the Employment
Standards Act, 2000 (available at Ontario.ca/ESAguide).

• To determine whether you have an obligation to pay termination pay and the amount
owing, please see the Termination Tool (available at Ontario.ca/ESAtools).

Severance Pay
Severance pay is not the same as termination pay, which is given in place of the required
notice of termination of employment. Severance pay is compensation that is paid by an

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employer to a qualified employee who has his or her employment severed. It compensates an
employee for loss of seniority and the value of firm-specific skills, and recognizes his or her
long service.
To calculate the amount of severance pay an employee is entitled to receive, multiply the
employee's regular wages for a regular work week by the sum of:

• the number of completed years of employment; and

• the number of completed months of employment divided by 12 for a year that is not
completed.
The maximum amount of severance pay required to be paid under the ESA is 26 weeks.
When Severance Occurs
A person's employment is "severed" when his or her employer:

• Dismisses or stops employing the employee, including when an employee is no longer

employed due to the bankruptcy or insolvency of his or her employer;

• Constructively dismisses* the employee, who resigns in response within a reasonable

time;

• Lays the employee off for 35 or more weeks in a period of 52 consecutive weeks;

• Lays the employee off because the employer permanently discontinues all of the
business at an establishment (remember that an establishment can, in some
circumstances, include more than one location); or

• Gives the employee written notice of termination and the employee resigns after giving
the employer two weeks' written notice, and the resignation takes effect during the
statutory notice period.
*For more information on constructive dismissals, see the chapter on “Termination of
Employment” in Your Guide to the Employment Standards Act, 2000 (available at
Ontario.ca/ESAguide).

Wrongful Dismissal
The rules under the Employment Standards Act (ESA) about termination and severance of
employment are minimum requirements. An employee may have greater entitlements under
common law, which he or she might choose to enforce by suing the employer in court for
wrongful dismissal. The ESA prohibits an employee from both suing an employer in court for
wrongful dismissal and pursuing a claim for termination pay and/or severance pay with the
ministry, if the lawsuit and the claim relate to the same termination or severance of
employment (although the ESA does provide that an employee who files a claim can still sue if
he or she withdraws the claim within two weeks of filing it). Note that the fact that the
employer has provided notice of termination or termination pay, or severance pay, in
accordance with the ESA does not mean that the employee cannot sue for wrongful

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dismissal. Employees and employers may wish to obtain legal advice concerning their rights
and obligations.
Helpful Tips

• To see a more detailed discussion on when an employee’s employment is considered

severed, the chapter on “Severance Pay” in Your Guide to the Employment Standards
Act, 2000 (available at Ontario.ca/ESAguide).

• To determine whether you have an obligation to pay severance pay and the amount
owing, please see the Severance Tool at Ontario.ca/ESAtools.

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Questions? Call the Employment Standards Information Centre at 1-800-531-5551
13. EMPLOYMENT STANDARDS LAWS CAN
CHANGE
Historically, employment standards laws have been frequently reviewed and updated to
address changes in the Ontario workplace.
Information, resources and tools on these important changes can be found on our website:
Ontario.ca/EmploymentStandards. On this website, you will also find a number of interactive
tools that address many topics in this Workbook.
For additional questions, please call our Employment Standards Information Centre at 1-800-
531-5551. Information is available in multiple languages.
Understanding and following the ESA requires that those affected by changes make the time to
read about them and ask questions if something is unclear. The employment standards
resources available online are regularly updated to include new information as required.

© Queen’s Printer for Ontario, 2016

Printed in Canada

This Workbook is provided for your information and convenience only.

For information, call the Employment Standards Call Centre at 1-800-531-5551 or visit Ontario.ca/EmploymentStandards.

The Employment Standards Workbook | October 2016 68