Record Keeping

If you work in the province of Ontario and the company falls under its jurisdiction, you may be covered under the Employment Standards Act, 2000. The Act sets minimum standards that an employer is required to follow, if it does not, you can file a claim on line with the Ministry of Labour. If you are still working for the company, you may be able to request that your name should not be disclosed. The Act protects you if you are trying to exercise your rights.

The Act requires an employer to keep written records of each employee it hires for three years after he has stopped working and that these records are readily available for inspection.

The employer is expected to record and retain the following information:

. The employee’s name, address and starting date of employment.
. Date of birth if the employee is a student under 18.
. The hours worked by the employee each day week. It does not apply to employees who are paid salary and their hours of work do not change from day to day. However, any deviation from regular workweek must be recorded. The employer need not records hours of work for employees who are exemptfrom overtime pay or maximum hours of work.
. Any agreement to average hours over two, three or four weeks for the purpose of overtime pay or to work more than 8 hours per day.
. Records of payment of vacation pay and how it was calculated?
. Records of vacation time earned from the date of hire and when it was paid?
. Wage statements showing each period for which wages were earned and paid including details of deductions.
. All documents relating to pregnancy, parental, family medical, personal emergency, declared emergency or reservist leave.
. Home workers are also covered by the above requirements.

An example would illustrate some of the record keeping requirements under the Act.

The employer disagreed with the officer’s decision that it has failed to comply with the requirement of record keeping and appealed her decision to Ontario labour Relations Board. However, it failed to attend the hearing convened by the Board. The officer did attend the hearing and gave evidence to support her decision.

The officer had issued a notice of contravention citing 14 violations of the Act costing the employer a sum of $3,500.00 ($250.00 for each violation). There were number of claims against the company but all these claims were settled except one.

The officer gave clear evidence that the employer’s own records were incomplete and incorrect regarding the entitlement of vacation pay, holiday pay and overtime. She claimed although there were numerous other violations of the Act, she decided to cite the core provisions of the Act namely, wages, vacation pay and public holiday pay. The officer’s concern was that the employer would continue to violate the Act, if he is not deterred.

The referee found the officer’s evidence was clear and concise. She had investigated the employer’s records, considered the employer’s own admission that in certain instances appropriate payments had not been made and considered statements of various employees. The employer’s practice was to pay an employee $1500.00 on a monthly basis, divided by the number of working days in that month. From her investigation of the documents and the employer’s own records, she found that the employer has failed to pay wages, vacation pay and public holiday pay in accordance with the Act.

The referee accepted the officer’s findings and confirmed the Order to Pay against the company.

The employer is required to keep the records but if the employee keeps his/her hours of work, it will help if there is a dispute.

Note: The parties must attend a hearing if one is convened and give evidence to support their position. The party that does not attend such a hearing is unable to dispute the evidence of the other party. The referee makes his/her decision on the evidence that is submitted at such a hearing.

There may come a time when you or the employer may disagree with the officer’s decision. If it happens, both parties have a right to appeal to Ontario Labour Relations Board within 30 days of the officer’s decision. It does not cost you any money but the employer may be required to give money to the Ministry to be kept in trust if it is found to be owing. The Board’s decision is final and binding on both parties.

This information is only provided for guidance and should not be considered as a legal advice.

This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.

If you have any questions regarding your employment, please contact the writer by e-mail at esaconsulting@hotmail..com

If you don’t have access to e-mail; you can fax your question at (905) 331-1805.