Before You Start - Ontario Central Forms RepositoryFile/MOL-ES-002E_BeforeYouStart.pdf · MOL-ES-002E_Before_You_Start ... employers understand some of the minimum rights and obligations

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Before You Start Information you need to know about filing an Employment Standards Claim

Disclaimer: This resource has been prepared to help employees and employers understand some of the minimum rights and obligations established under the Employment Standards Act (ESA) and regulations. It is not legal advice. It is not intended to replace the ESA or regulations and reference should always be made to the official version of the legislation. Although we endeavor to ensure that the information in this resource is as current and accurate as possible, errors do occasionally occur. The ESA provides minimum standards only. Some employees may have greater rights under an employment contract, collective agreement, the common law or other legislation. Employers and employees may wish to obtain legal advice.

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Contents


Please read the following information about claims under the Employment Standards Act, 2000

What is the ESA?The ESA is a law that sets minimum employment standards in most Ontario workplaces. Examples of minimum employment standards are:

• Payment of Wages• Tips and Other Gratuities• Minimum Wage• Public Holidays• Overtime Pay• Vacation Time and Pay• Pregnancy and Parental Leave• Personal Emergency Leave

• Family Caregiver Leave• Limits on Hours of Work• Eating Periods and Rest Periods• Termination of Employment• Severance Pay• Reprisals• Temporary Help Agency Rules

Am I covered by the ESA?If you are an employee working in Ontario, you are probably covered by the ESA. However, some employees are not covered by the ESA and some employees who are covered by the ESA have special rules and/or exemptions that may apply to them. For more information, visit Ontario.ca/ESAguide or try our Special Rule Tool available at Ontario.ca/ESAtools.

The ESA does not apply to you if you work for any employer under federal jurisdiction: for example, post offices, airlines, banks, and TV and radio stations.

What if I was covered by a collective agreement when the problem occurred? (For example, unionized employees)You should ask your union representative for help with your issue.

Generally, if you were covered by a collective agreement when the problem occurred, you cannot file a claim with the Ministry of Labour.

If I have started a court action, can I file a claim with the Ministry of Labour?If you have already started a court action against the employer, you cannot file a claim about the same employment standards matter. Note there are some exceptions. For more information, visit Ontario.ca/ESAguide.

If I file a claim with the Ministry of Labour, can I also start a court action?Where a claim has been filed with the Ministry of Labour, a court action generally cannot be started unless the claim is withdrawn within two (2) weeks of the date it was filed. If you have questions about court actions, we suggest that you consult a lawyer before filing a claim.

Are there time limits on the recovery of money?For all unpaid wages, including vacation pay, an employment standards officer (ESO) can issue an order if the claim was filed within two years of the date the wages came due.

Generally, wages, except vacation pay, become due on the employee's regular pay day. However, if the employment relationship ends, all of the wages owed to the employee (including any unpaid vacation pay) are due either within seven days of that date, or on what would have been the employee's next regular pay day, whichever is later.

http://Ontario.ca/ESAguide

http://Ontario.ca/ESAtools




Is there a limit on the amount of money the Ministry of Labour can order my employer to pay?There is no limit on the amount of money an ESO can order for unpaid wages.

Is there any help available to determine what I believe I am owed?To figure out the amount of money you believe you are owed, please refer to the online information available from the Ministry of Labour on employee and employer rights and responsibilities at Ontario.ca/EmploymentStandards or the Pay Calculator Tool at Ontario.ca/ESAtools. You can and should save and print copies of any calculations. Your Guide to the Employment Standards Act, 2000 may be of particular help, as each employment standard has a dedicated chapter, along with examples. The Guide can be found on our website at Ontario.ca/ESAguide. You may also contact the Employment Standards Information Centre at 416-326-7160, or our toll-free line at 1-800-531-5551 from anywhere in Canada, for more information on your employment standards rights. Information is available in multiple languages.

What if I want to add/update information in my claim?If you have already filed a claim against an employer do not file another claim against the same employer. Refer to your confirmation letter for details on changing or updating information to your claim.

What if I am a Temporary Help Agency Employee?The ESA has rules that apply to assignment employees of temporary help agencies and to clients of such agencies even though the client is not the employer of the employee.

You are a temporary help agency assignment employee if you are employed by a temporary help agency for the purpose of being assigned by the agency to perform work on a temporary basis for client(s) of the agency. In this case, the temporary help agency is your employer.

A client is a person or entity that enters into an arrangement with a temporary help agency to have one or more of its employees assigned to perform work on a temporary basis in the client's workplace(s).

Where can I find information about other workplace laws?The ESA is not the only law that applies to Ontario workplaces.

The Government of Canada (Federal) laws cover:

• T4 slips for Income Tax• Records of Employment• Employment Insurance• Income Tax• Canada Pension Plan

For information on these and other federal laws, contact Service Canada.

Other Government of Ontario (Provincial) laws cover:

• Occupational Health and Safety

• Labour Relations (i.e. unions, collective agreements, and strikes)• Human Rights• Pay Equity• Workplace Safety and Insurance

For information on these and other provincial laws, contact ServiceOntario.

Ontario.ca/EmploymentStandards

Ontario.ca/EmploymentStandards

http://ontario.ca/ESAtools



Steps to filing an Employment Standards Claim

Step 1: Collect and keep important documents

Completing the Claim Form may be easier if you have the relevant documents with you. If you do not have the documents, do the best you can to fill out the Claim Form with as much detail as possible - you do not have to have these documents in order to file a claim.

These documents can also help with the claim investigation. Keep these documents but do not send the documents to us until requested.

The table below lists the employment standard contraventions and some documents that may be helpful when completing your claim and in the investigation of your employment standards claim.

Employment Standard Contravention Do you have these documents?

Regular Pay You are claiming your employer owes you wages that you earned during your normal hours of work but not including overtime pay, vacation pay, public holiday pay or tips and other gratuities.

Overtime Pay You are claiming your employer owes you for overtime that you worked.

Public Holidays/Public Holiday Pay You are claiming your employer did not give you the time off for a public holiday or you are claiming your employer owes you public holiday pay and/or premium pay.

Minimum Wage You are claiming your employer did not pay you the minimum wage.

• Pay stubs for the period(s) you believe you are owed wages.

• Pay cheques, including those that have "bounced", or are "NSF" ("non-sufficient funds").

• Records of the hours you have worked (for example, timesheets, attendance records, calendar, diary, or notes).

• Written contract of employment, if there is one.

Vacation Pay/Vacation Time You are claiming your employer owes you vacation pay or that your employer did not provide you with vacation time off.

• Pay stubs for the periods you believe you are owed vacation pay and/or any pay stubs that show payment of vacation pay.



• T4 Slips. This document is used for income tax purposes to show exactly how much money you made while working and any deductions that were made.

• Written contract of employment, if there is one.• Record of Employment form (ROE). This federal

document shows your work history with your employer.



Tips and Other Gratuities You are claiming that your tips were deducted, withheld, you were required to give them to your employer or that you did not receive all or part of a tip pool.

• Copies of bills or credit card receipts indicating tips and other gratuities.

• Any contracts or documents that set out tip pooling policies or practices.

• Any other records you may have kept indicating tips and other gratuities you earned.

Limits on Hours of Work

• Eating periods

• Excess daily or weekly hours

• Rest periods between days/shifts

You are claiming that you worked excess hours and/or you did not receive rest periods.



Unauthorized Deductions from Wages, Tips and Other Gratuities

You are claiming your employer took money from your pay that should not have been taken.

• Pay stubs for the periods you believe there were deductions from your pay cheque.

• Pay cheques showing deductions from your pay.• Records of the hours you have worked (for example,

timesheets, attendance records, calendar, diary, or notes).

• Written authorizations, if there are any.

• Copies of bills, credit card receipts or other documents indicating tips and other gratuities.

• Any contracts or documents that set out tip pooling policies or practices.

Termination Pay You are claiming your employer did not provide you with the required amount of written notice of termination or termination pay instead of notice.

Severance Pay You are claiming that your employment was severed and your employer owes you severance pay. Generally, employees may be entitled to severance pay only if they have been employed for five years or more, and their employer has an annual payroll of $2.5 million.

• Pay stubs showing your weekly rate of pay.





• Written notice of termination, if received.

• Any warning letters or notices received.

Termination of Assignment Pay You are claiming a Temporary Help Agency did not provide you with at least one week’s written notice or pay in lieu when an assignment scheduled to last longer than 3 months was terminated early.

• Pay stubs showing your weekly rate of pay.• Any documentation about length of assignment(s)

from the temporary help agency or client.• Written notice of termination of assignment.



Temporary Help Agency charged a prohibited fee You are claiming a Temporary Help Agency charged fees that it should not have charged.

• Pay stubs where fees have been charged.• Records of the hours you have worked (for example,

timesheets, attendance records, calendar, diary, or notes).


• Any receipts, invoices, or cancelled cheques relating to fees charged by the Temporary Help Agency.

Temporary Help Agency did not provide required information

You are claiming a Temporary Help Agency did not provide you with the information about the agency, client or your work assignment, and/or the ESA information sheet about your rights.

• Any information provided by the agency concerning the agency, relevant work and/or ESA rights.

Temporary Help Agency restricted the Client from hiring you or providing you with references

You are claiming a Temporary Help Agency stopped a client from hiring you, or an agency prevented a client from providing you with a reference.

• Any warning letters or notices received.• Any notes you kept from discussions with the Client

or the Temporary Help Agency about hiring you for the job.

Reprisal by the Employer (which includes a Temporary Help Agency)

You are claiming your employer threatened or punished you because you exercised or attempted to exercise a right under the ESA.



• Time sheets or other records that show changes in your hours of work or shifts.

Reprisal by the Client Business of the Temporary Help Agency

You are claiming the client business threatened or punished you because you exercised or attempted to exercise a right under the ESA.



• Time sheets or other records that show changes in your hours of work or shifts.

Leaves of Absence• Pregnancy

You are claiming your employer did not provide you with a pregnancy leave of up to 17 weeks unpaid time off work.

• Parental You are claiming your employer did not provide you with a parental leave of up to 61 or 63 weeks of unpaid time off work.

• Personal Emergency You are claiming your employer did not provide you with up to 10 days due to illness, injury and certain other emergencies and urgent matters. Most employees are entitled to receive pay for the first two days of the leave. The remaining eight days are unpaid.

• Documents related to a leave of absence.




• Any written notice or written plan you provided the employer.

• For family caregiver leave, family medical leave and/or critical illness leave, you may use the Ministry's “Medical Certificate to Support Entitlement” found at the following link: Ontario.ca/ESAforms.

http://ontario.ca/ESAforms



• Family Medical You are claiming your employer did not provide you with an unpaid leave of up to 28 weeks to provide care to a specified family member where a doctor has issued a certificate indicating that they have a serious medical condition with a significant risk of death occurring within a period of 26 weeks.

• Family Caregiver You are claiming your employer did not provide you with up to eight weeks of unpaid leave to provide care or support to a specified family member with a serious medical condition.

• Critical Illness You are claiming your employer did not provide you with up to 37 weeks of unpaid leave to provide care to a critically ill child who is a family member and/or up to 17 weeks of unpaid leave to provide care to a critically ill adult who is a family member.

• Crime Related Child Disappearance You are claiming your employer did not provide you with an unpaid leave of up to 104 weeks for a child that is missing as a probable result of a crime.

• Child Death You are claiming your employer did not provide you with an unpaid leave of up to 104 weeks if your child has died.

• Domestic or Sexual Violence You are claiming your employer did not provide you with a leave of up to 10 days and/or 15 weeks to seek medical attention or professional counselling/services, to relocate, seek legal or law enforcement services, or obtain victim services due to domestic or sexual violence against you or your child. Employees are entitled to receive pay for the first five days of the leave, and the rest of the leave is unpaid.

• Organ Donor You are claiming your employer did not provide an unpaid leave up to 13 weeks, for the purpose of undergoing surgery to donate all or part of certain organs to a person.



• Reservist You are claiming your employer did not provide an unpaid leave to you as a military reservist who was deployed to an operation.

• Declared emergency You are claiming your employer did not provide an unpaid leave because of an emergency declared under the Emergency Management and Civil Protection Act.

• Misclassification as an independent contractor, intern, volunteer or any other type of worker role not covered by the ESA.

You are claiming your employer does not believe you are an employee but you think you are covered by the ESA.

• Written contract of employment, if there is one, or any agreements with the employer (for example, relating to method of payment, place of work, hours of work, job description, or any other condition or term).

• Pay stubs• Work schedules or task lists• Business cards• Invoices to or from the employer

Step 2: Fill out the claim form• The Claim Form asks you to give a lot of detailed information. It may take you an hour or more to

complete it.• It is important to fill in the Claim Form as best you can. The basic information we need from you is

marked by asterisks (*). Missing information may cause a delay in processing your claim. • If you do not know the answer to a question marked with an asterisk, you must record

"unknown." If the question does not apply to your situation, you must record "not applicable" or "n/a."

• Providing complete and accurate information for all other fields ensures that your claim will be processed in a timely manner.

• The Ministry of Labour will try to contact you if certain information is missing.

Step 3: Submit your claim and receive a claim number

We recommend that you file your claim online at the Ministry of Labour website. To access the Claim Form online visit Ontario.ca/ESAforms. If you file your claim online, you will immediately receive your claim number and a letter that confirms that you filed a claim. You will be able to print and/or save a copy of your claim and confirmation of filing a claim letter. You may also file your claim: By fax at 1-888-252-4684. By mail to: Provincial Claims Centre Ministry of Labour 70 Foster Drive, Suite 410 Roberta Bondar Place Sault Ste. Marie ON P6A 6V4 Note: If you file your claim by fax or by mail, we will send you a letter with your claim number. Please file your claim only once.

http://Ontario.ca/ESAforms


What happens after you file your claim?

Your claim will be reviewed to ensure that you have provided all required information. Once your claim has been processed, it will be assigned for investigation. Once your claim is assigned, the investigating officer will contact you. Claims are investigated in the order in which they are received.

Contact the Ministry of Labour for more information Call us at 416-326-7160, 1-800-531-5551, TTY 1-866-567-8893 (Information is available in multiple

languages.) Visit the Ministry of Labour website at: Ontario.ca/EmploymentStandards,

Your Guide to the Employment Standards Act, 2000 at: Ontario.ca/ESAguide or the online tools at: Ontario.ca/ESAtools

(You will also find information here about industries and jobs with ESA exemptions or special rules.)

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http://ontario.ca/EmploymentStandards

http://ontario.ca/ESAguide

http://ontario.ca/ESAtools