Getting Paid
The information below does not replace advice from a lawyer. If you have a legal problem you should talk with a lawyer.
What is “Employment Law”?
Most employment laws are made by the federal and provincial governments. Which laws protect you
depends on whether your employer is regulated by the provincial government or by the federal
government.
Federally regulated employers include banks, inter-provincial transportation and communications, and
federal crown corporations. Their employees are protected by federal laws such as the Canada Labour
Code and the Canadian Human Rights Act.
Most Nova Scotia employers are regulated by provincial laws such as the Nova Scotia Labour
Standards Code and the Nova Scotia Human Rights Act.
If you are unsure about which level of government regulates your employer, call the Labour
Standards Division of the Nova Scotia Department of Labour and Workforce Development.
An employer has an obligation to pay its employees wages and benefits for the work they do. Both the
Labour Standards Code and the Canada Labour Code set minimum standards for wages, overtime pay,
vacation and holiday pay and severance pay. They also provide a way for employees to recover wages
owed to them.
Q - What is an "employee"?
The Labour Standards Code and the Canada Labour Code only apply to “employees”. Not everyone who
works for someone else is an employee. Many people are self-employed
and work for others as independent contractors. They do not receive the same protections the law gives to employees.
It is not always easy to decide if you are an independent contractor or an employee. If you control your
own work, use your own tools and materials, and are solely responsible for your own profit and loss you
are likely an independent contractor. Nova Scotia Labour Standards has a check list
that may help you to determine
whether you are an independent contractor. If you are in doubt, a lawyer or the Labour Standards Division
should be able to help you.
Not all employees are protected by the Labour Standards Code. Domestic workers who work less than 24
hours per week for an employer or who are employed to look after a family member are the only group
that is completely exempt. In addition, some employees such as unionized workers are only protected by
some provisions of the Code. If you are in doubt about your status, you should contact the Labour
Standards Division or talk to a lawyer.
Collecting your wages under the Nova Scotia
Labour Standards Code
Q - What are you entitled to?
By law, at the very least, your employer must provide minimum wage and benefits. The following
information is about the minimum amounts that must be paid according to the Labour Standards Code.
Your agreement with your employer may provide for more than the minimum standards. If so, your
employer will have to pay whatever amount is part of your agreement.
Minimum Wage
As of April 1, 2010, Nova Scotia’s minimum wage for
experienced employees is $9.20 per hour. For inexperienced employees it is $8.70 per hour.
The minimum wage for federally regulated employees matches the provincial rate.
Some employees are not covered by minimum wage legislation. They include domestic workers,
apprentices and trainees, many commission sales people, and some employees in the fishing industry.
If you believe you have not been properly paid you should contact the Labour Standards Division or
Labour Program, Human Resources & Skills Development Canada.
Vacation
Most employees are entitled to at least two unbroken weeks vacation with pay for every 12 months worked. Employees who have worked for an employer for longer than 8 years are entitled to at least three unbroken weeks of vacation with pay for every 12 months worked. If the employer and employee agree, the vacation may be broken into two or more parts, as long as the required minimum is met and the employee gets at least one week of unbroken vacation.
Your
employer must allow you to take your vacation no later than 10 months after completion of 12 months of
work. This means your employer could require you to work for 22 months before giving you a vacation.
Full-time employees must take vacation time.
If you work for your employer less than 90% of regular working hours (for example, less than 36 hours in
a 40 hour work week), you can tell your employer in writing that you do not want to take vacation, and that you want vacation pay instead. Your employer must
pay you 4% of your annual wage if you do not take vacation (6% after 8 years).
If you leave your job or are let go, your employer must pay any vacation pay owing to you within 10 days of the end of the employment.
Vacation pay is calculated at a minimum of 4% of gross wages you have earned for the year, or 6% for employees who have worked for an employer for longer than 8 years. Gross means
before deductions for tax, CPP, etc.
Holidays with pay
New Year’s Day, Good Friday, Canada Day, Labour Day, and Christmas Day are general holidays with
pay.
If you work on a general holiday, you are entitled to a regular day’s pay plus one and one half
times your regular rate.
These standards for paid holidays apply to most full and part-time
employees so long as the
employee was: entitled to receive pay any 15 days in the 30 calendar days before the holiday, and
worked a scheduled working day immediately before and after the holiday.
If you work in a business that operates on Sundays and holidays, you may lose your
entitlement to holiday pay if you do not report for work on the general holiday when you are required to.
While Remembrance Day is not a holiday under the Labour Standards Code, the Remembrance Day Act
requires many businesses to close. Some of those that are allowed to open are covered by special rules for
paying employees who work on that day.
In addition, there are 8 designated retail closing days in Nova
Scotia: New Year’s Day, Good Friday, Easter Sunday, Canada Day, Labour Day, Thanksgiving Day,
Christmas Day and Boxing Day.
Some days are recognized as holidays, but are not paid holidays under the Labour Standards Code. These
days include: Easter Monday, Victoria Day, Natal Day, Thanksgiving Day, and Boxing Day.
Overtime
For most jobs, the general minimum wage order requires that employees be paid overtime. The rate is
at least one and one half times the minimum wage for hours worked in excess of 48 in a week.
Deductions from your pay
Your employer is required to deduct income taxes, Employment Insurance and Canada Pension Plan
contributions, as well as any other deductions you have agreed to such as other pension plans, medical
plans or charitable donations. Unless you have agreed, your employer cannot deduct money from your
wages to pay for damage you may have caused to the employer’s property or goods, debts you owe your
employer, losses incurred by you (for example, you give the wrong change to a customer) or goods your
employer accuses you of stealing. If your employer makes a deduction for items such as these without
your agreement, you should contact Labour Standards.
Q - How and when should you be paid?
Your employer must pay you in cash, by cheque or by bank deposit at least twice a month and within
five working days after the end of each pay period. This can be changed by a collective agreement, an
existing practice, or an order of the Director of Labour Standards.
Q - How to collect unpaid wages
There are several ways of collecting unpaid wages. Remedies under the Labour Standards Code are
only available to employees covered by the Code. Methods such as suing in Small Claims Court are
available to all employees. (See “Other ways to collect your wages", below.)
If you have not received wages you are entitled to, the Labour Standards Code provides an
inexpensive way of claiming unpaid wages.
You can make a complaint to the Director, Labour Standards Division of the Nova Scotia Department of
Labour and Workforce Development. You must make the complaint within six months of the employer’s
failure to pay. You must not have started any other proceeding to collect your unpaid wages such as
taking your employer to court.
The Director must look into the complaint and try to reach a settlement.
A telephone call to the Labour
Standards Division will start the inquiry, but it may take several weeks or months for them to settle the
complaint one way or another.
The Director has authority to examine your employer’s records as part of the inquiry.
Following the investigation, one of two things can happen. The Labour Standards Division can:
1) dismiss your complaint if it considers it invalid, or
2) order your employer to give the wages owed to you to the Labour Standards Tribunal by a
specified date.
The Tribunal will then pay the wages to you.
If you have not received notice of the Director’s decision within one month of your complaint, or you
are not satisfied with the decision, you may appeal it to the Labour Standards Tribunal. Your employer
may also appeal if not satisfied with the Director’s decision. The appeal must be made in writing within
l0 days of receiving the Director’s decision.
If there is an appeal, the Tribunal will set a time for a hearing and advise all interested parties. The
parties can attend the hearing to tell their story to the Tribunal and to present evidence. They can be
represented by a lawyer. If your employer is appealing, the Director or a government lawyer will
represent you. The Tribunal can confirm the Director’s decision or make its own decision.
You or your employer can appeal the Tribunal’s decision to the Nova Scotia Court of Appeal on a point
of law or legal authority (called jurisdiction). The appeal must be made within 30 days of the decision.
Again, if your employer appeals, the Director will represent you.
When an employer appeals an order of the Director of Labour Standards, the Labour Standards Tribunal
may require the employer to post a bond as security. You, the employee, can then claim your pay against
the bond if the employer loses the appeal. The bonding company will pay the claim regardless of whether
your employer has sufficient assets to pay your claim. In practice, the employer is rarely asked to post a
bond.
Q - Enforcing a Labour Standards order
An order by the Director or the Labour Standards Tribunal has the same effect as an order of the
Supreme Court. It can be enforced by the Director of Labour Standards or by you in any of four ways:
1) Garnishment — The Director can garnishee any moneys owed by third parties to your employer to
satisfy your wage claims. This may include funds from the employer’s bank account. The third party must
pay the money to Labour Standards. It will be paid to you when the Labour Standards Tribunal has made
a final determination of your complaint in your favour.
To garnishee means to warn the person who owes money to your employer, or who holds money on
behalf of your employer, such as a bank, that the money must not be paid to the employer but to
someone else or to the court.
2) Sale of Property — You may register a Labour Standards Tribunal order as a judgment and the
Sheriff’s Office may seize any property in which your employer has an interest and sell it at a public
auction. The proceeds of sale will be distributed to you and to your employer’s other creditors according
to law.
3) Foreclosure — An order of the Labour Standards Tribunal is a lien and a charge in favour of the
Tribunal for the amount set out in the order. It gives the Tribunal a mortgage on your employer’s assets
for that amount. The Tribunal can enforce the mortgage by foreclosure proceedings. If you are owed
vacation pay, you hold a separate mortgage on the assets of your employer for the amount of vacation
pay. You can also enforce that mortgage by foreclosure proceedings.
4) Statutory Prosecution — You or the Director can lay a charge against your employer for failure to
comply with the order. The penalty is a fine not exceeding $5000 if your employer is a person, or a
maximum $25,000 fine if your employer is a corporation. Your employer pays the fine to the court, not
to you. Penalties increase for second or subsequent offences.
Drawbacks to the Labour Standards Code
The Labour Standards Code is the most effective way of recovering unpaid wages, but there are limits
to its effectiveness.
The Labour Standards Division has many cases to deal with. It takes time to get a decision from the
Director of the Labour Standards Division. It may take months to get a claim enforced.
When an employer does not pay an employee, it often means the employer is unable to pay its other debts
either. As a result, employee claims for unpaid wages are often competing with the employer’s other
creditors for money owed them. Often there is not enough money or other assets to pay all of the
employer’s debts. The law tries to resolve this problem by giving some creditors priority over others
when they come to collect their debts. Employee claims for unpaid wages which have been validated by
Labour Standards Orders usually take priority over other creditors. However, if the employer is bankrupt,
there may be no money or assets left for the employees to collect. The employees and other creditors may
have nothing against which to enforce their claims.
Collecting your wages under the Canada Labour Code
Q - What are you entitled to?
Again, what follows are minimum protections only. You may have an agreement with your employer
which provides wages and benefits that are more than the minimums. In that case, you are entitled to the
amounts agreed to.
Minimum Wage
The Canada Labour Code follows the minimum wage provision for each province.
Vacation and holidays with pay
You are entitled to at least two weeks vacation with pay for every 12 months worked. Your entitlement
increases to three weeks vacation annually after six consecutive years with the same employer.
If you leave your job or are let go, your employer must pay any vacation pay owing to you. Vacation pay
is calculated at a minimum of 4 percent of the annual wage for employees who have worked up to six
years with the same employer, and a minimum of 6 percent of the annual wage after six years or more
with the same employer.
The Canada Labour Code makes New Year’s Day, Good Friday, Victoria Day, Canada Day, Labour
Day, Thanksgiving Day, Remembrance Day, Christmas Day, and Boxing Day general holidays with
pay. If you work on a general holiday, you are entitled to a regular day’s pay plus one and onehalf
times your regular rate. If you work in a business which normally carries on without regard for Sundays
and holidays you are entitled to holiday pay only if you report for work on the general holiday.
Overtime
You must be paid one and onehalf
times your regular rate for hours worked in excess of 40 hours in a
week. There are some exceptions.
Severance Pay
You are entitled to severance pay upon termination of your job if you have worked for your employer
for at least 12 consecutive months. Severance pay is two days’ pay at your regular rate for every year
worked with a minimum benefit of five days’ severance pay. An exception is where your employer fires
you for just cause. Just cause means the employer has a good reason for firing you.
Q - How and when should you be paid?
You should be paid on your regular payday as established by practice and, no matter what the
practice, within 30 days of entitlement.
How to collect unpaid wages under the Canada Labour Code
Under the Canada Labour Code, there are provisions for collecting pay on behalf of employees.
They include:
1) Recovery of Wages. If the Labour Program makes a decision that an employee is owed wages, it may
ask the employer to voluntarily pay the wages. If the employer disagrees with the decision, the Labour
Program may issue a Payment Order. Within 15 days of being served with the order, the employer must
pay the amount owing to the Receiver General and state whether he or she wishes to appeal. If the
decision is appealed, a referee is appointed to hold a hearing to decide the matter.
2) If the employer does not respond to a Payment Order, the Labour Program may issue an Order to
Debtor. This type of order is served on third parties who owe money to the employer. The third party is
required to pay the money to the Receiver General.
3) Under the Canada Labour Code, directors of the company may be held liable for up to six
months’ outstanding wages.
Employees covered by the Canada Labour Code may also rely on the methods listed in “Other ways
to collect your wages” below.
Q - Other ways to collect your wages
Before you decide to try to collect your pay using one of the following ways, you should talk with a
lawyer about your situation.
Suing your employer
Your employer’s failure to pay you is a breach of contract. You can sue in court for damages. If your claim is for less than $25,000 you can sue your employer in Small Claims Court.
Currently, court fees to start a claim range from $90 to $180 depending on the amount of the claim. You
do not need a lawyer to represent you in Small Claims Court, although you may want one if your case is
complicated.
If you win in Small Claims Court, you can register your order as a judgment. You can then apply for an
Execution Order to help you collect the debt. If you cannot collect the debt, you may apply to the sheriff
who may seize the assets of your employer and sell them to satisfy your claim.
As with the Nova Scotia Labour Standards Code mechanism, however, the effectiveness of this
remedy may be limited if your employer has other creditors whose claims take priority over yours.
If your claim is for more than $25,000, you must sue in the Nova Scotia Supreme Court. The
main disadvantage is the cost. You will likely need a lawyer because the procedure is complicated.
The one advantage of suing your employer in court is that you have six years from the breach of
contract to begin the suit.
If you ask the Labour Standards Tribunal to collect, you must begin your
claim within six months of your employer’s failure to pay you. Under the Canada Labour Code, you
have 90 days to begin a claim.
Statutory prosecution
Under the Nova Scotia Labour Standards Code and Canada Labour Code, your employer may be
prosecuted for failure to pay. Usually, the department of labour (federal or provincial) carries out the
prosecution. The Court can order your employer to pay part or all of the wages owing to you.
Under the Labour Standards Code, the prosecution must be started within six months of the failure
to pay and within two years under the Canada Labour Code.
The advantage of prosecution is that, if your employer is found guilty and ordered to pay your claim for
wages as part of a probation order, he or she must pay or face further charges for breach of probation.
That is a strong incentive for an employer unless the company has no funds.
The disadvantage is that a statutory prosecution requires proof beyond a reasonable doubt. This makes
prosecution more difficult than in a civil suit or Labour Standards Code complaint where the standard
of proof is “on a balance of probabilities”.
Collecting from third parties
In some cases, persons other than your employer may be liable for your claim for unpaid wages.
If you work for a corporation that is registered under the Canada Business Corporations Act, you can sue
the directors of the company personally for wages owed you. This may be useful where the company
itself does not have sufficient assets to pay all its creditors including employees’ claims for unpaid
wages.
The Labour Standards Tribunal can garnishee any money owing to your employer by a third party. This
remedy also exists under the Canada Labour Code. The money is held in trust for the employee until any
appeals, such as an appeal by your employer against a decision of the Labour Standards Tribunal, are
heard. The money never gets into the hands of your employer and so cannot be claimed by other
creditors.
Finally, all persons who have worked on or provided materials or services to a construction project may
place a builder’s lien upon the lands on which the work was done. The lien is for all amounts owing and
justly due, including wages. The Builders’ Lien Act (a provincial law) gives a 30 day
priority to wages over all other lien claimants. You may also be able to claim other benefits such as health, insurance or
pension plan benefits depending on the circumstances.
Q - Where to get more information
Nova Scotia Department of Labour and Workforce Development
Labour Standards Division
Halifax 424- 4311
(complaints) Halifax 424-5300(
general inquiries)
Sydney
563-2180
Toll free: 1 888 315 0110
Website: http://www.gov.ns.ca/lwd/
Human Resources and Skills Development Canada Labour Program
Halifax 426-4995
Sydney 564-7130
Toll free: 1 800 641 4049
Website:
http://www.labour.gc.ca
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