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What are the requirements relating to advertising positions?
Ads may not express or imply any limitation, specification or preference based on a prohibited ground of discrimination. The prohibited grounds are:
- national or ethnic origin;
- sexual orientation;
- marital status;
- family status;
- disability; and
- convictions for an offence for which a pardon has been granted or a record suspension has been ordered.
The federal government has proposed adding gender identity or expression to the list of prohibited grounds.
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
An employer can request an applicant to consent to a criminal record check, provided that it is limited to offences for which a pardon has not been granted or a record suspension has not been ordered. This should be done as part of a conditional offer of employment.
(b) Medical history?
An employer may inquire about an applicant’s medical history only if he or she has a condition that may affect his or her ability to perform the job safely. Such questions may be asked only if a disability or condition would threaten the safety of the individual or others. Any further questions should be asked during a pre-employment medical examination and must relate to conditions which are relevant to the specific duties of the position in question. A pre-employment medical may be required only as part of a conditional offer of employment.
(c) Drug screening?
Pre-employment and random drug screenings are generally not permitted, subject to extremely limited exceptions (eg, truck drivers who are required to drive in the United States as part of their duties).
(d) Credit checks?
Credit checks are permitted with the applicant’s consent.
(e) Immigration status?
An employer can ask all applicants whether they are legally entitled to work in Canada. If an applicant is hired, he or she must be asked to provide confirmation of her or his entitlement to work in Canada by providing a valid social insurance number and any applicable work permit.
(f) Social media?
Employers can assess an applicant’s social media presence. However, employers should be careful about basing any decision on information gained from social media that might be connected to a prohibited ground of discrimination. Generally, employers should obtain consent from an applicant before reviewing such information to comply with privacy legislation.
Wages and working time
Is there a national minimum wage and, if so, what is it?
Canada has no national minimum wage. The minimum wage for federally regulated employees in each province and territory is the same as the minimum wage applicable to provincially regulated employees in that province or territory. The minimum wage rates in the provinces and territories are adjusted periodically. As of November 1 2016, those rates range from $10.50 to $13.00 per hour.
Are there restrictions on working hours?
For most occupations, the standard working hours are eight hours per day and 40 hours per week; the maximum number of working hours per week is 48. Employees may work more than 48 hours per week in an emergency. An employer and its employees (or the union representing the employees) can agree to modify the application of these rules to some degree. However, a government permit is generally mandatory to require or permit an employee to work hours regularly in excess of 48 hours per week. The standard and maximum working hours are higher for certain occupations (eg, bus and truck drivers). Certain categories of employees are exempt from the hours of work rules altogether,
Hours and overtime
What are the requirements for meal and rest breaks?
No specific statutory requirements exist. However, employers should ensure that employees take sufficient breaks to avoid health and safety issues.
How should overtime be calculated?
Under the Canada Labour Code, overtime is payable at one and a half times the standard hourly rate for all hours worked in excess of the standard hours (generally eight hours per day and 40 hours per a week).
What exemptions are there from overtime?
Standard hours (ie, the threshold for determining overtime) vary in certain industries (eg, trucking). Where working hours vary day to day or week to week, averaging can be adopted with employee or union consent. Modified schedules can be agreed with a union or groups of employees provided the schedule does not exceed an average of 40 hours per week over a two-week period. The hours of work and overtime provisions of the Canada Labour Code do not apply to managers, superintendents, employees who exercise management functions or members of the architectural, dental, engineering, legal or medical professions.
Is there a minimum paid holiday entitlement?
Employees are entitled to nine paid holidays per year (ie, New Year’s Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day and Boxing Day). In addition, after one year of employment, employees are entitled to two weeks of paid vacation each year. After six years of employment, employees are entitled to three weeks of paid vacation. Minimum statutory vacation pay is 4% (6% after six years of employment) of the employee’s earnings in the previous year.
What are the rules applicable to final pay and deductions from wages?
An employer may not deduct from wages or other amounts due to an employee, including termination and severance pay, unless it is authorised:
- by a federal or provincial statute or regulation;
- by a court order;
- by a collective agreement;
- by the employee in writing; or
- to correct overpayments of wages.
An employer cannot enter into an agreement with an employee to deduct from wages with respect to damage to or loss of property or loss of money if anyone other than the employee had access to the property or money in question.
What payroll and payment records must be maintained?
Employers must maintain the employment records required by the Canada Labour Standards Regulation, generally for three years after the work has been performed. The following information must be retained for each employee:
- hire date;
- termination date;
- social insurance number;
- wage rates;
- hours of work; and
- actual earnings, including overtime pay, holiday pay, vacation pay, termination and severance pay.
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