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What are the requirements relating to advertising open positions?
Job advertisements should comply with human rights legislation and generally should not contain statements, qualifications or references that directly or indirectly relate to protected grounds.
Under the standards pursuant to Ontario’s accessibility legislation, employers must state that they will provide accommodations during the hiring process for interested candidates who have a disability.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
In order to avoid a discrimination complaint, all background checks – including criminal record checks – should be performed only after a conditional offer of employment has been extended. A standardised process for conducting searches of a federal criminal records database exists. Individuals cannot be discriminated against based on convictions for criminal offences which have been pardoned or provincial regulatory offences, unless there is a bona fide occupational requirement (eg, the job involves working with vulnerable persons).
(b) Medical history
Generally, medical history should not be considered in the hiring process, except where there is a bona fide occupational requirement. Pre-employment medical testing or medical history can be requested after a conditional offer of employment has been extended, if it can be shown that this information is directly relevant to the position.
(c) Drug screening
Drug and alcohol testing is a contentious issue in Canada because addiction is seen as a disability under human rights law, and because it has been held that drug testing does not actually determine whether an employee is impaired while at work. This has led to seemingly conflicting lines of case law, one from Ontario and the other from Alberta. The federal and Ontario approach is that, in general terms, testing is inherently discriminatory under human rights law. However, the law does distinguish between drug and alcohol testing, because a positive breathalyser test for alcohol shows an existing impairment, while a drug test may not necessarily show an existing impairment.
In Ontario, this has led to a general prohibition on pre-employment drug testing. Federally, random drug testing of employees is viewed as discriminatory, even for safety-sensitive positions. This is because drug testing does not reflect actual or future impairment on the job. Even if an employee used a drug days or weeks before the day of testing, there may still be evidence of the substance at the time of testing. Random alcohol testing for safety-sensitive positions may be acceptable in some cases, but the Supreme Court of Canada recently upheld an arbitrator’s decision striking down random alcohol testing for safety-sensitive positions.
Even testing that measures impairment can be justified only if it is demonstrably connected to the performance of the job (eg, after significant accidents or 'near misses'). Post-incident drug and alcohol testing must generally be part of a larger rehabilitation programme for employees.
The approach taken by most Ontario and federal adjudicators is that drug and alcohol testing is inherently discriminatory and can be used only in limited circumstances. The primary reason for conducting drug testing should be to measure impairment. The Ontario Human Rights Commission has released a new drug and alcohol testing policy that provides useful guidance on the legal principles employers should take into account when designing and implementing any testing regime.
However, when employees must work part of the time in the United States (eg, inter-provincial truckers) and drug screening is a requirement under US state law, that requirement may be found to support an employer’s position that drug testing is a bona fide occupational requirement that should be permitted notwithstanding general human rights and privacy concerns.
(d) Credit checks
For provincially regulated employers, it is best practice to conduct credit checks only where it would be reasonable to do so (eg, where the employee is handling and responsible for large sums of money or valuables). In addition, consumer reporting legislation sets out consent requirements and prescribed procedures.
Federally regulated employers are governed by the Personal Information Protection and Electronic Documents Act and can request credit checks only where it would be reasonable to do so.
(e) Immigration status
Employers may require proof of legal ability to work in Canada as a condition of employment, but are prohibited under human rights legislation from inquiring into a prospective employee’s ancestry, citizenship or national or ethnic origin.
(f) Social media
Social media checks during the pre-hiring stage increase the risk of a discrimination complaint, as a candidate’s social media profile may disclose information concerning a protected ground under human rights legislation.
Wage and hour
What are the main sources of wage and hour laws in your state?
The Ontario Employment Standards Act 2000 is the main source of wage and hour law.
For federally regulated businesses, Part III of the Canada Labour Code applies.
What is the minimum hourly wage?
The general minimum hourly wage is C$11.40.
What are the rules applicable to final pay and deductions from wages?
Provincial rules Deductions from wages can be made where the law authorises them or where an employee has provided written authorisation. The amount to be deducted must be set out in the authorisation or readily determinable by way of a formula. No amounts may be deducted in respect of employer losses due to faulty work, missing cash or property losses if other persons had access to the lost cash or property.
Federal rules Employers cannot make deductions from wages or other amounts due to an employee except under certain permitted instances, including:
- payments authorised by a federal or provincial act or regulation;
- deductions authorised by a court order or a collective agreement or other document signed by a trade union on behalf of an employee;
- deductions authorised by the employee in writing; and
- overpayments of wages by the employer.
Hours and overtime
What are the requirements for meal and rest breaks?
Provincial rules A 30-minute unpaid meal period must be provided after five hours of work, although this can be split into two 15-minute breaks with the employee’s agreement.
Federal rules There are no prescribed rest periods for federally regulated employees. However, most employers follow provincial guidelines for safety and employee relations purposes.
What are the maximum hour rules?
Provincial rules Employees cannot work more than 48 hours per week; special rules apply for certain industries (eg, construction). Excess hour permits may also be obtained. Maximum weekly hours may be exceeded under exceptional circumstances.
Federal rules Employees cannot work more than 48 hours per week; special rules apply for certain workers in various industries (eg, trucking, shipping and railways).
How should overtime be calculated?
Provincial rules Overtime is calculated as one and a half times the employee’s regular rate for all hours worked in excess of 44 hours per week; special rules exist for certain industries.
Federal rules Overtime is calculated as one and a half times the employee’s regular rate for all hours worked in excess of eight hours per day or 40 hours per week – whichever is greater; special rules exist for certain industries.
What exemptions are there from overtime?
Provincial rules The terms 'exempt' and 'non-exempt' are not used in Canada to differentiate between employees. In Ontario, employee entitlements to certain provisions under the Employment Standards Act 2000 (including hours of work and overtime) are generally determined based on whether the employee is considered to be in a managerial or supervisory role. However, special exemptions exist for some commissioned salespersons, professionals (eg, lawyers, engineers, dentists and architects) and information systems professionals. Film and television industry employees are exempt from hours of work, but not overtime.
With respect to the main managerial and supervisory exemption, the Employment Standards Act 2000 provides that a “person whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis” is excluded from the hours of work and overtime provisions. The Ontario Ministry of Labour’s interpretation manual provides further guidance regarding the interpretation of the terms 'irregular' or 'exceptional' as follows:
- 'Exceptional' suggests that non-supervisory or non-managerial duties may be performed as long as they are being performed outside of the ordinary course of the employee's duties.
- 'Irregular' implies that although the performance of non-supervisory or non-managerial duties is not unusual or unexpected, these duties are unscheduled or sporadic (ie, they do not occur at a regular or set time).
The application of the above principles will vary from case to case. Below are some general factors that are considered in Ontario when assessing whether an employee’s work is managerial or supervisory in character (using a retail store environment as an example):
- What percentage of time do managers perform the same work as sales associates?
- How frequently do managers perform non-managerial work (eg, do they perform the work of a sales associate every day or once a week)?
- Do managers perform non-managerial work on a scheduled basis (eg, during lunch)?
- Do managers have no alternative but to perform non-managerial work?
- Do managers perform non-managerial work only for unforeseen reasons (eg, if a sales associate calls in sick or there is an unexpected rush of customers)?
- Do managers’ performance appraisals include an evaluation of non-managerial work?
- Are managers performing their managerial role at the same time that they perform non-managerial work (eg, the store manager may be on the floor for supervisory purposes, but will also assist customers if necessary)?
Federal rules The Canada Labour Code states that the standard hours of work and overtime do not apply to employees who are managers or superintendents, exercise management functions or are members of the architectural, dental, engineering, legal or medical professions. The test for the managerial exemption is similar under federal law.
What payroll and payment records must be maintained?
Type of information
Ontario retention period
Employee’s name, address and the date on which he or she began employment
Three years following termination
Employee’s date of birth, if the employee is a student under 18 years of age
Either three years after the employee’s 18th birthday or three years after the employee’s termination – whichever is earlier
Number of hours the employee worked each day and each week, unless the employee is paid a salary and overtime provisions do not apply or any excess hours are recorded
Three years after the day or week to which the information relates
Information contained in each written statement given to the employee in relation to wages, wages on termination and vacation pay
Three years after the information was given to the employee
Notices, certificates, correspondence and other documents relating to employee leave (eg, pregnancy, parental, emergency, family medical or reservist)
Three years after the date on which the leave expired
Every agreement made permitting the employee to work excess hours
Three years after the last day on which work was performed under the agreement
Every overtime averaging agreement that the employer has made with the employee
Three years after the last day on which work was performed under the agreement
Vacation time and vacation pay records, including the amount of:
Three years following the date the record was made
Ontario also requires employers to record the hours worked by employees of temporary help agencies that are assigned to them and to retain those records for three years.
There may be different record-keeping considerations for federally regulated businesses.
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