Part VI of the Act (Records) imposes certain obligations on employers to create detailed records pertaining to the employment of each employee, and to retain those records over specified periods of time. These records may serve as evidence in the event of a complaint under the Act. The obligations with respect to keeping records of vacation time and pay in paragraph 6 of s. 15(1) and paragraph 5 of s. 15(5) of the Act were repealed and replaced by those set out in a new section (s. 15.1) by the Government Efficiency Act, 2002, SO 2002, c 18 (GEA 2002) which came into force on November 26, 2002. In addition, the GEA 2002 amended the record-keeping obligations to add a requirement to keep records of the information provided in statements to employees upon the termination of employment in accordance with s. 12.1 (new).

Section 15 – Records

Records – s. 15(1)

Section 15(1) sets out the specific information that an employer is required to record and keep concerning the employment of each employee. This provision was amended by the Fair Workplaces, Better Jobs Act, 2017, SO 2017 c 22 amended this provision by adding new record keeping obligations in paragraphs 3.1 and 3.2.

The employer can choose their format for records, as the ESA 2000 does not provide specific formatting requirements. Instead, the ESA 2000 sets out what information must be captured and the time periods during which it must be maintained and kept readily available for inspection.

Accurate and complete records may provide evidence of compliance with other parts of the ESA 2000, although they are not necessarily conclusive. Where an employer has not made and kept complete records, the employment standards officer will be required to make a determination with respect to such issues as the employee's rate of pay and hours worked, etc., on the best evidence available.

In W.G. Wilson Transportation Inc. o/a Modern Cab v Aubertin (August 25, 1987), ESC 2259 (Aggarwal) Referee Aggarwal determined that where an employer fails to keep accurate records of hours worked by an employee, a record kept by the employee may provide the basis for calculating hours worked. The employer's argument that the employee's records are self-serving should be disregarded.

The employer's obligations in s. 15(1) are clear and specific. They shall record the following information with respect to all employees, including homeworkers:

  • 1. Name and address
  • 2. Date of birth, if employee is a student and under 18 - note that age is relevant under the ESA 2000 for the purposes of student minimum wage – see ESA Part IX, s. 23.1
  • 3. Date employment commenced (start date)
  • 3.1 The dates and times that the employee worked subject to the exception in s. 15(3)
    • Section 15(3) – the requirement in s. 15(1), para. 3.1 does not apply to salaried employees if:
      • the employer records the number of excess hours in a regular work week and the number of hours in excess of eight hours per day; or
      • the number of hours in excess of the regular number of hours in the employee's regular work day;
  • 3.2. If the employee has two or more regular rates of pay in a work week and performs work in excess of the overtime threshold, the dates and time the employee worked in excess of the overtime threshold at each rate of pay.
  • 4. Number of hours worked by the employee in each day and each week subject to the following exceptions:
    • Section 15(3) - the requirement in s. 15(1), para. 4 does not apply to salaried employees if:
      • the employer records the number of excess hours in a regular work week and
      • the number of hours in excess of 8 hours per day; or the number of hours in excess of the regular number of hours in the employee's regular work day

        or

      • ESA Part VII, ss. 17 to 19 and ESA Part VIII (Overtime Pay) do not apply to the employee.
    • Section 11(3) of O. Reg. 285/01: an employer does not have to keep records of the number of hours worked in each day and each week by homemakers who are paid in accordance with O. Reg. 285/01, s. 11(2)
    • Section 23 of O Reg 285/01: an employer does not have to keep records of the number of hours worked in each day and each week by residential care workers.
  • 5. The information contained in each employee's wage statement under ESA Part V, ss. 12(1) and 12.1, statements with respect to substitute public holidays under ESA Part X, ss. 27(2.1), 28(2.1), 29(1.1) and 30(2.1), and/or separate vacation pay statement as required under ESA Part XI, s. 36(3)(b).

Note the ESA does not require employers to keep records regarding tips and other gratuities. Furthermore, because tips and other gratuities do not fall within the definition of wages, there is no obligation for an employer to include information regarding tips and other gratuities on wage statements.

Homeworkers – s. 15(2)

This provision applies to employers of homeworkers. Under s. 15(2), an employer must maintain a register of any homeworker tthey employ. In addition to the requirements for records under s. 15(1), this register must contain the following information:

  1. Homeworker's name and address
  2. Wage rate (if there is one), and
  3. Any information prescribed by the regulations (as of the time of writing, there is no prescribed information.)

Exception – s. 15(3)

Section 15(3) relieves an employer from the requirement to record the dates and times the employee worked and all daily and weekly hours worked by employees who are paid a salary as defined in s. 15(4) if:

  1. The employer records the employee's weekly and daily excess hours of work; or
  2. The provisions for overtime pay in Part VIII and ss. 17 to 19 (the provisions regarding maximum hours of work, time free from work and exceptional circumstances) do not apply to the employee.

Meaning of salary - s. 15(4)

This provision defines salary for the purposes of the record-keeping requirements of s. 15(3).

Where an employee receives a fixed payment for each pay period for services rendered to the employer, and where the payment does not vary by the number of hours the employee works (unless the hours are in excess of 44 hours per week), they are considered under s. 15(4) to be in receipt of a salary.

Section 15(4)(a) does not mean, however, that the pay per pay period can never change. For example, an employee would still be deemed to be a salaried employee where the employee receives a raise resulting from a change to the employment contract. In other words, an employee will be considered to be paid a salary, even though the salary may change, provided the change is long term rather than a consequence of a weekly fluctuation in hours worked.

Retention of records - s. 15(5)

Under s. 15(5), an employer must retain records or arrange for another person to retain them for stipulated three-year periods. Note that the retention periods with respect to vacation time and pay records is  five  years and are set out in s. 15.1.

It should also be noted that it is the responsibility of the employer to record and retain information for record-keeping purposes. Where an employer makes an arrangement for another person, such as a bookkeeper or accountant, to retain the records, the employer's responsibility to create the records is not removed. Further, an employer must also ensure that the records are readily available for inspection by an employment standards officer even where another person retains them – see the discussion at ESA Part VI, s. 16.

A manager's claim for wages cannot be disallowed simply because one of his duties was to properly complete records, including his own. In 634429 Ontario Limited c.o.b.a. Great Scott's Restaurant v Mayo et al (January 2, 1987), ESC 2204 (Bryant), a decision under the former Employment Standards Act, Referee Bryant stated Under section 11 of the ... Act the employer is responsible for maintaining accurate records relating to the employee's performance of work. See also Village of West Lorne v Orchard (February 15, 1985), ESC 1787 (Brown).

Employment standards officers should note that any information they give to an employer regarding the retention periods of records must be limited to the requirements of the ESA 2000. Some records may be required by other legislation, either federal or provincial, (e.g., the federal Income Tax Act) for longer time periods.

Occasionally, enquiries are received as to whether the Program or Director of Employment Standards will authorize the destruction of records after the stipulated three-year periods. The response should be that the ESA 2000 requires records to be maintained for certain periods and is not contravened if records are not kept beyond the expiry of those time periods. The ESA 2000, however, does not empower the Director to authorize the destruction of records.

Register of homeworkers - s. 15(6)

This provision permits an employer to remove information concerning the employment of a homeworker in their employ, from the register, three years after the homeworker's employment has ended.

Retain documents re leave – s. 15(7)

This provision was amended effective March 19, 2020 as a result of the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 to include a reference to infectious disease emergency leave.

It was previously amended effective January 1, 2019 as a result of the Making Ontario Open for Business Act, 2018 to reflect new Part XIV Leaves of Absence that replaced personal emergency leave – sick leave, family responsibility leave and bereavement leave.

Section 15(7) requires an employer to retain (or arrange for some other person to retain) all notices, certificates, correspondence and other documents relating to any leave taken by an employee under ESA Part XIV Leaves of Absence. The documents must be retained for a period of three years after the end of the leave. The employer must also ensure that these documents are readily available for inspection by an employment standards officer, upon request, in keeping with ESA Part VI, s. 16.

The documents that must be retained include the following:

Pregnancy leave

  • Section 46(4)(a): written notice to take pregnancy leave
  • Section 46(4)(b): medical certificate stating due date, if requested
  • Section 46(5): written notice to change pregnancy leave start date
  • Section 46(6)(a): written notice of the day pregnancy leave began or is to begin because of a complication, birth, still-birth or miscarriage
  • Section 46(6)(b)(i): medical certificate if requested: unable to work, due date
  • Section 46(6)(b)(ii): medical certificate if requested: due date, actual date of birth, still-birth or miscarriage
  • Section 47(2): written notice to end pregnancy leave early
  • Section 47(3): written notice to change end date of pregnancy leave
  • Section 47(4): written notice to resign from employment on or before end of pregnancy leave

Parental leave

  • Section 48(4): written notice to take parental leave
  • Section 48(5): written notice to change parental leave start date
  • Section 48(6): written notice provided after commencing parental leave where the child comes into the employee’s custody, care and control for the first time earlier than expected
  • Section 49(2): written notice to end parental leave early
  • Section 49(3): written notice to change parental leave end date
  • Section 49(4): written notice to resign from employment on or before end of parental leave

Family medical leave

  • Section 49.1(8): written notice to take family medical leave
  • Section 49.1(9): written notice provided after commencing family medical leave
  • Section 49.1(10): medical certificate if requested: individual has a serious medical condition with a significant risk of death occurring within a period of 26 weeks
  • Section 52.1: written agreement (if there was one) of the employer allowing an employee to return to work during a week they took leave (note: a s. 52.1 agreement does not have to be in writing)

Organ donor leave

  • Sections 49.2(14): medical certificate(s), if requested
  • Section 49.2(11): written notice to end organ donor leave early
  • Section 49.2(12): written notice to take or extend organ donor leave
  • Section 49.2(13): written notice provided after commencing or extending organ donor leave

Family caregiver leave

  • Section 49.3(6): written notice to take family caregiver leave
  • Section 49.3(7): written notice provided after commencing family caregiver leave
  • Section 49.3(8): copy of medical certificate, if requested

Critical illness leave

  • Section 49.4(17): written notice to take leaveand a written plan indicating the weeks in which the leave will be taken
  • Section 49.4(18): written notice provided after commencing leaveand a written plan indicating the weeks in which the leave will be taken
  • Section 49.4(19): written request to change when leave will be taken and employer's written permission, or employee's written notice of the change
  • Section 49.4(20): copy of medical certificate, if requested

Sick leave:

  • Sections 50(3) and (4): any documents advising employer that sick leave will be, is being or has been taken
  • Section 50(6): any document provided to the employer as evidence to support employee's entitlement to the leave

Family responsibility leave:

  • Sections 50.0.1(4) and (5): any documents advising employer that family responsibility leave will be, is being or has been taken
  • Section 50.0.1(7): any document provided to the employer as evidence to support employee's entitlement to the leave

Bereavement leave:

  • Sections 50.0.2(4) and (5): any documents advising employer that bereavement leave will be, is being or has been taken
  • Section 50.0.2(7): any document provided to the employer as evidence to support employee's entitlement to the leave

Personal emergency leave (now repealed – in effect prior to Janauary 1, 2019):

  • Previous sections 50(3) and (4): any documents advising employer that personal emergency leave will be, is being or has been taken
  • Previous section 50(12): any document provided to the employer as evidence to support employee's entitlement to the leave

Declared emergency leave:

  • Sections 50.1(2) and (3): any documents advising employer that declared emergency leave will be, is being or has been taken
  • Section 50.1(4): any document provided to the employer as evidence to support employee's entitlement to leave

Infectious disease emergency leave:

  • Sections 50.1(2) and (3): any documents advising employer that infectious disease emergency leave will be, is being or has been taken
  • Section 50.1(4.1): any document provided to the employer as evidence to support employee's entitlement to leave

Reservist leave:

  • Sections 50.2(5) and (6): written notice advising the employer that reservist leave will be or is being taken, see also s. 50.2(1) for the requirement for notice to be in writing
  • Section 50.2(7): any document provided to the employer as evidence to support employee's entitlement to the leave
  • Section 50.2(9): written notice of intention to end the leave, see also s. 50.2(1) for the requirement for notice to be in writing

Child death leave

  • Sections 49.5(7) and (8): written notice that child death leave will be, is being or has been taken and a written plan indicating the weeks in which the leave will be taken
  • Section 49.5(9): written request to change when leave will be taken and employer’s written permission or employee’s written notice of the change
  • Section 49.5(10): any document provided to the employer as evidence to support employee's entitlement to the leave

Crime-related child disappearance leave:

  • Sections 49.6(11) and (12): any documents advising employer that crime-related child disappearance leave will be, is being or has been taken
  • Section 49.5(13):written request to change when leave will be taken and employer’s written permission or employee’s written notice of the change
  • Section 49.5(14): any document provided to the employer as evidence to support employee's entitlement to the leave

Domestic or sexual violence leave:

  • Sections 49.7(10) and (11): any documents advising employer that domestic or sexual violence leave per s.49.7(4)(a) (the 10 day entitlement) will be, is being or has been taken (note that the employee is not required to provide notice in writing under this subsection)
  • Sections 49.7(13) and (14): written notice that domestic or sexual violence leave per s.49.7(4)(b) (the 15 week entitlement) will be, is being or has been taken
  • Section 49.7(15): any document provided to the employer as evidence to support employee's entitlement to the leave
  • Further, note that per s. 49.7(17), the employer is required to protect the confidentiality of records either given to the employer by the employee or produced by the employer.  The release of these records is subject to the limits of s. 49.7(14).

All leaves (excluding reservist leave except where noted):

  • Section 51(1): written election to opt out of benefit plan(s) during leave
  • Section 51(3): written notice of employee’s intention not to pay employee's contribution(s) to benefit plan(s) – includes Reservist Leave during period of postponement under s. 53(1.1)
  • Sections 51.1(1), (2): any written agreement regarding deferral of vacation – includes Reservist Leave

Retention of agreements re excess hours – s. 15(8)

Section 15(8) requires employers to retain copies of agreements to work excess daily or weekly hours for three years after the last day on which work was performed under the agreement. The employer must retain or arrange for another person to retain these records. The employer must also ensure that the copies are readily available for inspection by an employment standards officer, upon request, in keeping with the requirements of ESA Part VI, s. 16.

Retention of disconnecting from work policies – s. 15(8.1)

Subsection 15(8.1) was added to the ESA effective December 2, 2021.  This provision requires employers to retain copies of every written policy on disconnecting from work required under Part VII.0.1 for three years after the policy ceases to be in effect.  The employer must retain or arrange for another person to retain these records. The employer must also ensure that the copies are readily available for inspection by an employment standards officer, upon request, in keeping with the requirements of ESA Part VI, s. 16.

Retention of averaging agreements – s. 15(9)

Section 15(9) requires employers to retain copies of agreements to average hours of work that were made under ESA Part VIII, s. 22(2)(a) for the purpose of calculating overtime pay entitlements for three years after the last day on which work was performed under the agreement. The employer must retain or arrange for another person to retain these records. The employer must also ensure that the copies are readily available for inspection by an employment standards officer, upon request, in keeping with the requirements of ESA Part VI, s. 16.

Section 15.1 – Record re vacation time and vacation pay

Record re vacation time and vacation pay – s. 15.1(1)

The Fair Workplaces, Better Jobs Act, 2017, SO 2017 c 22, effective January 1, 2018, amended this provision to add record keeping obligations with respect to the vacation pay earned in each vacation entitlement period. Section 15.1 should be read together with ESA Part XI, s. 41.1, which sets out employees' rights to a statement of the information recorded under this section.

Content of record – s. 15.1(2)

Section 15.1(2) sets out the record keeping requirements for both vacation time and pay with respect to each completed vacation entitlement year as follows:

  • Vacation time earned since the date of hire but not taken before the start of the vacation entitlement year
  • Vacation time earned during the vacation entitlement year
  • Vacation taken during the vacation entitlement year
  • Balance of vacation time remaining at the end of the vacation entitlement year
  • Vacation pay earned during vacation entitlement year and how the amount was calculated (effective January 1, 2018 –  see section 15.1(7) for transitional provisions)
  • Vacation pay paid during the vacation entitlement year, and
  • The amount of wages on which the vacation pay paid during the vacation entitlement year was calculated and the period of time to which those wages relate.

Additional requirement, alternative vacation entitlement year – s. 15.1(3)

15.1(3) If the employer establishes an alternative vacation entitlement year for an employee, the employer shall record the following information for the stub period:

  • 1. The amount of vacation time that the employee earned during the stub period.
  • 2. The amount of vacation time, if any, that the employee took during the stub period.
  • 3. The amount of vacation time, if any, earned but not taken by the employee during the stub period.
  • 3.1 The amount of vacation pay that the employee earned during the stub period and how that amount was calculated.
  • 4. The amount of vacation pay paid to the employee during the stub period.
  • 5. The amount of wages on which the vacation pay referred to in paragraph 4 was calculated and the period of time to which those wages relate.

Section 15.1(3) establishes the recordkeeping obligations with respect to vacation time and pay earned and taken in a stub period as follows:

  • Vacation time earned during the stub period
  • Vacation time taken during the stub period
  • Amount of vacation time earned but not taken during the stub period
  • Vacation pay earned during stub period and how that amount was calculated (effective January 1, 2018 –  see s. 15.1(7) for transitional provisions)
  • Vacation pay paid to the employee during the stub period, and
  • The amount of wages on which the vacation pay paid during the stub period was calculated and the period of time to which those wages relate.

When information to be recorded – s. 15.1(4)

Section 15.1 (4) requires the employer to make a record of the information regarding vacation time and pay for each vacation entitlement year and stub period no later than seven days after the completion of the vacation entitlement year or stub period, or the first pay day following the completion of the vacation entitlement year or stub period, whichever is later.

Retention of records – s. 15.1(5)

Similar to the record retention obligations established under s. 15(5), it is the employer's responsibility to retain the information recorded under s. 15.1. The Fair Workplaces, Better Jobs Act, 2017, SO 2017 c 22, effective January 1, 2018, amended this provision to increase the record retention period for records made under this section from three years to five years after they are made. The records may be retained by either the employer or some other person as arranged by the employer.

Note that if the employer does arrange for some other person to retain the records, this does not relieve the employer of the requirement to create the records.

Exception – s. 15.1(6)

Section 15.1(6) exempts employers from the obligation to record vacation pay paid during the vacation entitlement year and stub period, the amount of wages on which vacation pay were calculated and the period to which those wages relate, if the employer pays vacation pay in accordance with ESA Part XI, s. 36(3) (as amended). Under s. 36(3) an employer and employee may agree that the vacation pay that accrues over each pay period will be paid on the pay day for that pay period. In that case, the employer is required to provide the employee with a statement of the vacation pay paid either as part of the statement of wages provided under ESA Part V, s. 12(1), as per s. 36(3)(a), or separately as per s. 36(3)(b).

However, s. 15(1), paragraph 5 states that the employer is required to record the information provided to the employee in a statement given to the employee under s. 12(1) or s. 36(3)(b). An employer pays vacation pay in accordance with s. 36(3) if the statement of wages provided under s. 12(1) includes the amount of vacation pay paid or the employer provides a separate statement of vacation pay as per s. 36(3)(b).

As a result, where the employer pays vacation pay in accordance with s. 36(3), the employer is relieved by s. 15.1(6) of the requirement to make a record with respect to vacation pay paid and the wages on which it was calculated and the period to which those wages relate for a vacation entitlement year or stub period, but the employer must still record the vacation pay information provided on each pay day for each pay period either as part of the s. 12(1) statement of wages or on a separate statement as per s. 36(3)(b) in accordance with paragraph 5 of s. 15(1).

Transition - s. 15.1(7)

The Fair Workplaces, Better Jobs Act, 2017 SO 2017, c 22 added this provision, effective January 1, 2018. Section 15.1(7) is the transitional provision for the application of the new record keeping obligations for vacation pay earned during a vacation entitlement year in para 4.1 of s. 15.1(2) and the vacation pay earned during a stub period in para 3.1 of s. 15.1(3).

It provides that these new record keeping obligations do not apply to any vacation entitlement year or stub period that began before January 1, 2018.

Section 16 – Availability

Section 16 is intended to prevent unnecessary delays in the production of an employer's records during an investigation under the Act. An employer is expected to produce records made under ss. 15 and 15.1 promptly upon request by an employment standards officer, whether the employer is in possession of the records, or has arranged for another person to retain them.

Where an employer has arranged for another person to retain the records at a location other than the workplace, it remains the employer's responsibility to produce them, within a reasonable period of time, upon the request of an employment standards officer.