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Questions about Record Keeping

What exactly does this provision do?

The Fair Workplaces, Better Jobs Act expands the records provision of the Employment Standards Act, 2000 (ESA) by providing employers with additional record keeping obligations.

Why is this significant?

The records provision is expanded to provide greater recordkeeping accountability for employers. The new provision sets out several record keeping obligations for employers.

  • An employer must record the dates and times that the employee worked.
  • If the employee has two or more regular rates of pay for work performed for the employer and, in a work week, the employee performed work for the same employer in excess of the overtime threshold, the employer must record the dates and times that the employee worked in excess of the overtime threshold at each rate of pay.
  • If a day is substituted for a public holiday, the employer must provide the employee with a written statement containing the public holiday which is being substituted, the date of the day that is substituted for the holiday, and the date on which the statement is provided to the employee. The employer must retain a record of the information contained on the statement for three years.
  • Employers are required to keep records of the vacation time earned since the date of hire but not taken before the start of the vacation entitlement year, the vacation time earned during the vacation entitlement year (or stub period), vacation time taken (if any) during the vacation entitlement year (or stub period) and the amount of vacation time earned since the date of hire but not taken as of the end of the vacation entitlement year (or stub period). These records must be retained for five years after they are made.
  • The employer must keep records of the vacation pay earned and paid to the employee during the vacation entitlement year (or stub period, if any) and how that vacation pay was calculated. These records must be made no later than seven days after the start of the next vacation entitlement year (or first vacation entitlement year if the records relate to a stub period) or the first payday after the next vacation entitlement year ends (or first vacation entitlement year if the records relate to a stub period), whichever is later. This information must be kept for five years after the record of vacation time and pay was made.
  • The employer must keep all documents relating to an employee’s leave (e.g., pregnancy, parental, personal emergency, emergency leave during a declared emergency, family caregiver, family medical, critical illness, child care, organ donor, reservist, or crime-related child disappearance leave, child death, domestic or sexual violence leave) for three years after the day the leave has expired.

How is the new section different from the existing section in the ESA?

The new provision includes new recordkeeping obligations for employers that were previously not in this section of the ESA. The new provision also changes the time period employers are to retain vacation time and vacation pay records from three years to five years.

  • There are new recordkeeping obligations for employers in the records section of the ESA.
  • Employers are to record the dates and times that the employee worked.
  • If the employee has two or more regular rates of pay, and the employee performed work for the employer in excess of the overtime threshold, the employer must record the dates and times the employee worked in excess of the overtime threshold and the rate of pay for each overtime hour worked. These records must be kept for three years.
  • Employers are required to provide employees with a written statement that sets out specific information when the employee will be receiving a substitute day for a public holiday. Changes in the new recordkeeping provision require the employer to keep a record of the information contained in the statement.
  • The employer must keep records of the vacation pay paid to the employee during the vacation entitlement year (or stub period, if any) and how that vacation pay was calculated. The employer must also keep records of the vacation pay earned by the employee during the vacation entitlement year and how the amount was calculated. These records must be kept for five years.
  • The employer must keep or arrange for some other person to keep all notices, certificates, correspondence and other documents given to or produced by the employer that relate to an employee taking a leave. This information must be kept for three years after the day on which the leave expired.

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