Not all employees entitled to "Family Day"

Sep 30, 2012

Date: 2008
Author: Daniel A. Lublin
Publication: Metro
Family Day: Employees in Ontario celebrated the Ontario Government’s recent decision to add “Family Day” as the ninth public holiday under the Employment Standards Act (“ESA”).  But not so fast: despite its status as a statutory holiday, not all employees will receive the benefit of an additional day off work, or extra holiday pay if asked to work on that day.  Many employers in Ontario are avoiding Family Day by relying on a section of the ESA that allows them to disregard it, if they were already providing a greater entitlement to their employees.  In other words, in workplaces that provided employees with more than the minimum days off under the ESA, the employer may not have to recognize Family Day but can instead “trade” it with the extra day they were already providing.
Temporary Workers: a few weeks back, angry temporary agency workers made headlines by picketing their employers, arguing they were entitled to additional money for public holiday pay, if being asked to work on those days.  But, in my view, employment agencies haven’t necessarily done anything wrong– they simply rely on the provision of the ESA that permits them to deprive employees of holiday pay, provided the employees can be properly characterized as “elect to work”.  These employees should ask the provincial government to revisit the legislation instead of expecting their employers to interpret it differently.
Independent Contractors: are not protected by the ESA, so many employers characterize their employment relationships in this manner to avoid paying severance, overtime, or any other statutory obligation.  But despite what an employment contract may say, a judge will look at the true nature of the relationship to determine what it most closely resembles – employee or contractor.
Overtime: recent, high profile, class action lawsuits against Scotiabank and CIBC has moved workplace overtime disputes from this column, to the front page news.  While banks are subject to federal labour laws, the ESA has its own overtime regime requiring time and one half’s pay from each hour worked over 44 in a week.  But with numerous exceptions, special rules, averaging agreements, time off instead and enormous issues with proof, successful overtime lawsuits will be, in my view, few and far between.
Pregnancy and Parental Leave: Under the ESA complaints program, employers who dismiss, lay off, suspend, discipline or penalize, in any way, an employee who takes a pregnancy or parental leave may have to pay damages or worse reinstate the employee.  But, as an employee recently learned (in a case I argued for the employer), employers are immune from liability if terminating an employee or abolishing her position – for reasons unrelated to the leave.
No contracting out: employees may be bound by rules found in agreed upon contracts, workplace policies, or binding practices developed over time.  If any of these rules specifically, or in effect, provide an employee with less than the minimum entitlements found in the ESA, the rule will be invalid.

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