Hiring and wage & hour law in Canada - Ontario

Hiring

What are the requirements relating to advertising open positions?

Advertisements for open positions must not be discriminatory. Employers must offer accommodation to those who have a disability. 

(a)Criminal records and arrests

There are three types of check that an employer can do in Ontario:

• criminal records checks;
• criminal records and judicial matters checks; and
• vulnerable sector checks.

The candidate must consent to the above checks. Any criminal record check should be conducted only following a conditional offer of employment. An employer cannot discriminate based on a criminal conviction for which a pardon has been granted or any provincial act offense. 

(b)Medical history

Medical history or diagnoses of conditions should not be collected in a background check, except to the extent that this is a bona fide occupational requirement. To the extent that this is relevant for the purposes of providing accommodation, information about work-related restrictions can be requested only after the employee raises an issue of accommodation or disability or an objective basis exists that requires the employer to make inquiries regarding the need for accommodation.

(c)Drug screening

In general, pre-employment drug screening is not permitted, primarily because it does not determine whether an employee will come to work impaired by drugs.

Other types of testing are restricted, including as follows:

• Random drug testing is generally reserved for safety sensitive positions where there is evidence of a general problem with drug use in the workplace.
• Post-incident or for-cause testing is generally permitted only in safety sensitive workplaces and only as part of a larger rehabilitation program for employees.

(d)Credit checks

To the extent that a credit check is required for the purposes relevant to the position, this can be requested and provided upon consent.

(e)Immigration status

An employer can ask if a candidate is legally entitled to work in Canada. Anything further should not be requested since doing so may breach applicable human rights legislation.  

(f)Social media

An employer must be careful in collecting information available on social media without consent. Reliance on information that is inaccurate or touches upon prohibited grounds of discrimination may be actionable as against an employer or provide a basis for a privacy or human rights complaint.

(g)Other

Not applicable.    

Wage and hour

What are the main sources of wage and hour laws in your state?

ProvincialThe provincial source of wage and hour laws is the Ontario Employment Standards Act 2000.

FederalThe federal source of wage and hour laws is the Canada Labour Code (Part III).

What is the minimum hourly wage?

The general minimum hourly wage is C$14 (there are specific exceptions, including for students and liquor servers). Commencing in October 2020, this amount will increase annually based on the cost of living.

What are the rules applicable to final pay and deductions from wages?

ProvincialDeductions from wages can be made if authorized by a court order or statute or with the employee’s written authorization (which must refer to a specific amount or provide a formula for calculating that amount). There can be no deductions because of faulty work or because of a cash shortage or lost or stolen property where another employee had access to the cash or property.

FederalNo deductions are permitted, except as required by any statute or regulation, as authorized by a court order, collective agreement, or other document signed by a union, as authorized in writing by the employee, or for overpayments of wages.

What are the requirements for meal and rest breaks?

ProvincialAfter five hours of work, a 30-minute unpaid meal break must be granted (but, if agreed to, this can be split into two 15-minute breaks), with no statutory “coffee breaks” beyond the required meal period. Most employees must receive at least 11 consecutive hours off work each day. Employees must receive at least eight hours off work between shifts (unless the total time on both shifts is less than 13 hours), and 24 consecutive hours off each work week or 48 consecutive hours every two consecutive weeks. Employers and employees may be able to vary some requirements with a written agreement and statutory information sheet.

FederalAfter five hours of work, a 30-minute unpaid meal break must be granted, with no statutory “coffee breaks.” Between shifts, the minimum rest period is eight consecutive hours.

What are the maximum hour rules?

ProvincialForty-eight hours per week is the maximum with special rules in certain industries (e.g., construction). An employer and employee can enter into a written agreement (plus a statutory information sheet) to work excess hours. Further, in exceptional circumstances, the maximum weekly and daily hours can be exceeded. For most employees, the daily limit is eight work hours (or the regular workday if it is longer than eight hours).

FederalEmployees cannot work more than 48 hours per week, but an employer may apply for a permit to exceed those hours. Special rules apply in certain industries (e.g., railways and trucking).

How should overtime be calculated?

ProvincialThere is no daily overtime. All hours worked over 44 hours per week attract overtime at one and one-half times the employee’s regular rate. Certain industries have special rules. Employers and employees can enter into a written agreement averaging hours of work over a period up to four weeks for the determination of overtime entitlement.

FederalAll hours worked over 40 hours per week or eight hours per day (whichever is greater) attract overtime at one and one-half times the regular rate. Certain industries have special rules.

What exemptions are there from overtime?

ProvincialThe terms “exempt” and “non-exempt” are not generally used. Under the Ontario Employment Standards Act 2000, there are numerous exceptions from overtime obligations (including employees in supervisory or managerial roles, professionals (e.g., lawyers or doctors), certain commissioned salespersons and IT professionals), and special rules in certain industries (e.g., overtime applies to film and TV employees but not hours of work rules).

FederalOvertime and hours of work do not apply to employees who are managers or superintendents or exercise management functions, or to professionals (e.g., lawyers or doctors). The test for managerial status is similar to the provincial test.

What payroll and payment records must be maintained?

ProvincialRecord-keeping requirements include the following:

• the employee’s name, address, and the date on which their employment began;
• the employee’s date of birth, if the employee is a student under 18 years of age;
• the number of hours that the employee has 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;
• the dates and times that the employee worked;
• the information contained in each written statement given to the employee relating to wages, wages on termination, and vacation pay;
• any notices, certificates, correspondence, and other documents relating to employee leave (e.g., pregnancy, parental, emergency, family medical, or reservist);
• every agreement made permitting the employee to work excess hours;
• every overtime averaging agreement that the employer has made with the employee;
• vacation time and vacation pay records, including the amount of:
  • vacation time earned but not taken since the start of employment (if any);
  • vacation time earned in the year;
  • vacation time taken in the year;
  • vacation time earned but not taken at the end of the year;
  • vacation pay that the employee earned during the vacation entitlement year and how that amount was calculated;
  • vacation pay paid out during the year (subject to certain exceptions); and
  • wages on which vacation pay was calculated and the applicable time period (subject to certain exceptions); and

• the hours worked by employees of temporary help agencies that are assigned to the employer.

The retention period is generally three years from a specific date.

FederalThere are different extensive record-keeping requirements.