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Most employers and employees have a decent grasp of the Employment Standards Act, 2000 (the “ESA”). Despite this, we often find that there are many common misconceptions about what the legislation has to say about certain aspects of employment rights and obligations. This is important as these misconceptions can lead to difficulties in the employment relationship which can result in liabilities relating to issues such as wrongful dismissal.

Given this, below are some common assumptions and the truth behind them. 

I am entitled to coffee and bathroom breaks in addition to my lunch break.

False.

In Ontario, the ESA requires that an employer provide their employee with a 30-minute uninterrupted eating period after no more than five consecutive hours of work. During this 30-minute break the employee must be free from work. The ESA does not require that an employer provide any other break.

On that basis, you are not legally entitled to a coffee break, smoke break or bathroom break. While this may be the case, simply for practical reasons most employers regularly allow short breaks during the workday.

If you are an employee that requires frequent washroom breaks or other breaks, such as a snack break, an employer may have to accommodate you. Failing to do so could be a violation of your human rights. Behaviour such as monitoring the frequency of an employee’s breaks could also be a case of workplace harassment.   

If I leave and return to the same employer, my severance pay is calculated only based on the years of work following my most recent return.

False.

Multiple periods of employment with the same employer are to be included for the purposes of calculating severance pay. Failing to properly consider previous years of employment may significantly impact the amount of severance an employee may receive. If your employment has been terminated and you believe this may be an issue, then we recommend that you speak with an employment lawyer for assistance in reviewing your severance package.

My employer can provide me with working notice instead of a severance payment if I am fired.

False.

Ontario is the only province that provides a fired employee with severance pay in addition to termination pay (pay in lieu of working notice). Its purpose is to compensate an employee for losses that ensue following the loss of long-term employment.  

To qualify for severance pay, an employee must have worked for their employer for at least 5 years at the time of termination and the employer must have a payroll of at least 2.5 million in the province of Ontario or have severed the employment of over 50 employees within the past 6 months because all or part of the business has closed.

If an employee qualifies for severance pay following a wrongful dismissal, then the employee will receive one week’s pay for each year they have worked for their employer up to a maximum of 26 weeks.

Unlike termination pay which represents pay in lieu of working notice, severance cannot be provided by an employer as working notice, it must be provided as a payment.

Professionals working in information technology (IT) are not entitled to overtime pay.

True.

Certain employees such as IT professionals are exempt from rules that dictate daily and weekly maximum hours of work, overtime pay, as well as daily and weekly rest periods.

“Information technology professional” refers to an employee who is primarily engaged in the investigation, analysis, design, development, implementation, operation or management of information systems based on computer and related technologies through the application of specialized knowledge and professional judgement.

IT professionals are not the only workers exempt from the part of the legislation dictating work hours and rest periods. Firefighters, funeral directors and construction workers are some of the other workers that experience a variation in the applicability of laws surrounding work hours and rest periods. Managers and supervisors also do not qualify for overtime pay.

An employer can assign your vacation time.

True.

Under the ESA, employers are entitled to choose when an employee can take their vacation time. There are regulations regarding the minimum length of vacation time an employer can assign at a time. Typically, unless the employee agrees to otherwise, vacations are to be assigned by the employer in intervals of at least 1 week. This is required to allow employees to have true breaks from work, rather than being assigned scattered or single vacation days. 

The Employment Standards Act applies to all working Ontarians.

False.

While the ESA applies to most Ontarians, not all are covered. In some instances, an employee may only be partially covered by the legislation. These exemptions or variations are outlined in the legislation itself and the regulations. 

Some of the exemptions include:

  • Secondary school and post-secondary students working in a co-operative program
  • Those working in a sector that falls under federal jurisdiction such as bank employees, federal civil servants, radio and television station employees, and employees of post offices or airlines
  • Politicians, judges, religious officials or those elected to trade unions
  • Police officers
  • Self-employed workers and independent contractors
  • Ontario doctors, lawyers, architects, engineers, surveyors, teachers and accountants

The applicability and exemptions associated with the Employment Standards Act can be complex. If you have questions about the Employment Standards Act, 2000 or how it applies to employment situations such as workplace harassment, bonuses, stock options, severance pay or wrongful dismissal, please contact Toronto employment lawyers, Sultan Lawyers at mlahert@sultanlawyers.com or 416-214-5111.


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