The Employment Standards Act, 2000 (“ESA”) is legislation that applies to most employees in Ontario. Its purpose is to safeguard various workplace and employment-related norms throughout the province and is considered as providing a basic “floor of rights” to employees. In fact, even if you and your employer decide to contract out of a particular employment standard of the ESA on a mutual basis, such an agreement is unlawful and unenforceable.
However, certain professional employees will be surprised to find out that they are not actually entitled to some of the various employment standards as set out in the ESA and that are regarded as fundamental by most Ontarians. The fact is that some professional individuals occupying certain roles may not receive the statute’s full protection.
For instance, if you are an architect or an architecture student; an engineer or an engineering student; an information technology professional; a lawyer or an articling student; a public accountant or a public accountancy student; a surveyor or a surveying student or a teacher or a student training to be a teacher, you may not be entitled some or all of the following:
- minimum wage;
- daily or weekly limits on hours of work;
- daily rest periods;
- time off between shifts;
- weekly/bi-weekly rest periods;
- eating periods;
- overtime pay;
- sick leave, family responsibility leave or bereavement leave, if taking the leave would be professional misconduct or abandoning your duty;
- public holidays or public holiday pay; and,
- vacation with pay.
So, what does this mean? Are architects and engineers supposed to slave away from the moment of hiring to their retirement without taking a lunch break? The answer to this question is probably not. This is because the fact is that virtually all workplaces, regardless of whether those workplaces contain professional employees or not, will more than likely follow at least some of the above norms as set out in the ESA even though, statutorily, they don’t have to.
Moreover, any of the above statutorily exempt entitlements may (and often do) become a contractual term and, as such, form part of the parties’ express or implied workplace reality. Thus, for instance, if you’re a lawyer or an accountant and have agreed to an annual four-week vacation with your employer, depriving you of your time off will amount to a breach of the employment contract.
So, fear not: if you are a professional and have taken vacation in the past, do not cancel that long-awaited break with pay in the sun just yet, you’re probably entitled to it. And if, after all, you feel like you are being mistreated in the workplace, do not hesitate to give us a call!