Four Employment Standards that are Overwhelmingly Overlooked


Author: Carolyn Frost 

This post was written prior to our January 2017 merger, under our previous firm name, Aikins, MacAulay & Thorvaldson LLP.

Avoid fines as high as $50,000.

In January, the Toronto Star unveiled Ontario employers are overwhelmingly breaking laws created to protect workers in vulnerable employment positions. Investigations focused on employees holding “precarious employment” such as sessional, part-time and temporary jobs. The investigations found that out of 304 inspected workplaces, 238 workplaces were in some way violating the Employment Standards Act. Businesses inspected include cleaners, gyms, security companies and recreational facilities.

The Department of Labour and Immigration, which oversees the minimum employment standards in Manitoba, has a Special Investigations Unit that conducts similar investigations in our province. Workplace or industry-wide investigations are conducted when potential non-compliance is indicated by the public or when the Special Investigations Unit identifies particular areas of concern.

The Special Investigations Unit has the ability to take the following actions when it finds that minimum standards have not been met:

  • issue warning letters to employers explaining the law and the fines for breaking the law
  • direct employers to inform their employees about specific rights or post information in the workplace
  • order employers to pay wages owing to employees
  • fine employers with administrative penalties for repeated violations
  • publish employers that have been fined
  • initiate prosecutions, which could result in fines as high as $25,000 to $50,000

Based on the findings from the investigations in Ontario, it is apparent that the most common areas where employers might be uninformed or improperly applying minimum standards include:

  • overtime and/or minimum wages
  • imposing excess working hours
  • wage abuses for foreign workers
  • illegal deductions
  • general holiday wages for part-time employees

In Manitoba, the minimum standards that employers must abide by are set out in The Employment Standards Code, The Construction Industry Wages Act and The Worker Recruitment and Protection Act. Here are some key responsibilities employers should be aware of:

1. Overtime

The standard hours of work are eight hours per day and 40 hours within a week. Any work beyond 40 hours a week OR eight hours in a day is considered overtime such that the employee is obligated to pay the employee 1 ½ times the employee’s regular wage. Even employees who are paid by incentive pay, such as by commission or piece work, are entitled to receive overtime pay when their hours exceed these minimums.  Only employees who carry out management functions primarily or who are in substantial control of their own hours and earn at least double the Manitoba Industrial Average Wage are exempt from receiving overtime pay.

2. Deduction from Wages

Employers are responsible for paying employees for all hours worked. Money can be deducted by employers if it is required by law; if the employee has agreed to pay for something that will directly benefit them; or to compensate for any cash advances or payroll errors.

Common deductions include:

  • income tax
  • Canadian Pension Plan (CPP) contributions
  • Employment Insurance (EI premiums)
  • health or dental premiums

However, many costs cannot be deducted, even with the employee’s agreement, including:

  • the cost of uniforms that would be of no practical use to the employee otherwise
  • the cost of faulty work or damage
  • the amount of a cash shortage

3. General Holidays

Employees must be given time off with pay for general holidays or must be paid a premium if scheduled to work on general holidays.  Part-time employees are entitled to holiday pay as well as full time employees.

The general holidays in Manitoba are:

  • New Year’s Day
  • Louis Riel Day (the third Monday in February)
  • Good Friday
  • Victoria Day
  • Canada Day
  • Labour Day
  • Thanksgiving Day
  • Christmas Day
  • any other day designated by regulation as a general holiday

4. Wage Abuses for Foreign Workers

There is a larger risk that foreign workers may not receive the minimum working conditions set out in The Employment Standards Code. Language barriers, restricted work options and limited knowledge of employments rights are contributing factors to the high risk of exploitation in the workforce.

The Worker Recruitment and Protection Act requires Manitoba’s employers to register with the province before recruiting any foreign workers. This is to prevent illegal and unethical recruitment and employment practices and to protect foreign workers.

Conclusions:

It was found that 96% of Ontario businesses deemed in noncompliance with minimum employment standards later voluntarily complied when notified of any breaches. This indicates that employers were likely unaware of the employment standards that applied to their situation and were willing to change their practices to be in compliance with the applicable minimum standards.

To avoid breaches of employment standards obligations in your workplace:

  • Ensure you are well informed prior to starting a business
  • Be proactive and keep up to date with changing employment standards by checking the Manitoba Labour and Immigration website
  • Seek proper advice if an employment standards question arises

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

Acknowledgements

Carolyn would like to thank Christine Wong for her contributions to this article.