Retail Workers

This document is based on information from the Ministry of Labour's Web site at http://www.labour.gov.on.ca/english/es/factsheets/fs_retail.html (last updated July, 2006).

This Fact Sheet is provided for your information and convenience only.  It is not a legal document.  For further details, consult Employment Standards Act Brochure.  For complete information, refer to the Employment Standards Act, 2000 and its regulations

Before you read this document, please read the Ministry's General Information Fact Sheet and find out if the ESA applies to you.

Do retail workers have specific rights under the ESA?
The ESA contains rights that apply specifically to employees who work in most retail businesses.  (A retail business is one that sells goods or services to the public.)  These rights apply to both sales employees and non-sales employees, such as managers.  These rights also apply to employees who work in a retail business even if their employer is not a retail business.  For example, these rights apply to cleaners and security guards who work for a cleaning or security company but who are assigned to work in a shopping mall.

Retail workers have the right under the ESA to refuse to work on public holidays.  They also have the right to refuse work on Sundays, unless they agreed otherwise, in writing, at the time of being hired and their hiring took place on or after September 4, 2001.

If an employee of a retail business agreed to work on a public holiday, the employee can later decline to work by giving the employer at least 48 hours' notice before the employee's work is to begin.

For the most part, retail workers are governed by the same rules as other employees under the ESA.  For questions related to hours of work, minimum wage (including information on commission pay, and wages and deductions), overtime, vacation and other aspects of employment, consult the Fact Sheets or Employment Standards Act Publications.

Can employees refuse to work on a public holiday?
Employees of most retail businesses generally have the right to refuse to work on a public holiday.

When the public holiday falls on a day that would ordinarily be a working day, most retail employees qualify for the public holiday off work and for public holiday pay.

When the public holiday falls on a day that would ordinarily not be a working day, or the employee is on vacation, most retail employees qualify for a substitute day off and public holiday pay.

For further information:
visit the Web site:
How are You Covered by the ESA?
http://www.labour.gov.on.ca/english/es/factsheets/fs_covered.html

Does an employee have to give a reason for declining to work on a public holiday?
An employee of a retail business who has the right to refuse to work on a public holiday does not have to explain why he or she chooses not to work on a public holiday.

Can an employer punish an employee for not working on a public holiday?
No. An employee who has a right of refusal can't be dismissed, intimidated or penalized in any way for exercising his or her rights under the ESA.

Can employees refuse to work on a Sunday?

Sunday rules for employees hired before September 4, 2001
Employees of most retail businesses hired before September 4, 2001 have the right to refuse to work on Sundays.  If an employee agreed to work on Sundays, whether or not the agreement was made when he or she was hired, the employee can later decline to work by giving the employer at least 48 hours' notice before the employee's work is to begin.

Sunday rules for employees hired on or after September 4, 2001
Employees of most retail businesses hired on or after September 4, 2001 have the right to refuse to work on Sundays.  However, if they agreed in writing at the time of being hired on or after September 4, 2001, that they would work on Sundays, they cannot then refuse to work on Sundays except for reasons of religious belief or observance.

An employer can't make an agreement to work on Sundays a condition of hiring an employee if this violates the Human Rights Code.  (Contact the Ontario Human Rights Commission for further information.  The number is listed in the blue pages of your telephone book, under "Human Rights".) 

Employees who did not agree in writing at the time of being hired to work on Sundays can agree to work on a Sunday.  They can later change their minds and decide not to work, but must give the employer notice at least 48 hours before they are scheduled to work.

Does an employee have to give a reason for declining to work a Sunday?
An employee of a retail business who has the right to refuse to work on a Sunday does not have to explain why he or she chooses not to work on a Sunday.  Where an employee has agreed in writing at the time of hire (on or after September 4, 2001) to work on a Sunday, they can later decline to do so by advising the employer their refusal is due to reasons of religious belief or observance.

Can an employer punish an employee for not working on a Sunday?
No.  An employee who has a right of refusal can't be dismissed, intimidated or penalized in any way for exercising his or her rights under the ESA.

Are there times when retail employees cannot refuse to work on public holidays or Sundays?
The special rules regarding public holidays and Sunday work in the ESA that allow certain retail employees to refuse to work public holidays and Sundays do not apply if the main business is to:

• sell prepared meals (i.e., restaurants, cafeterias, cafés);
• rent living accommodations (i.e., hotels, tourist resorts, camps, inns);
• provide educational, recreational or amusement services to the public (i.e., museums, art galleries, stadiums);
• sell goods and services that are secondary to the businesses described above; and
• are located on the same premises (i.e., museum gift shops, souvenir shops in stadiums).

This means that retail employees working in these kinds of businesses have no right under the ESA to refuse Sunday work.  This also means that the regular rules about public holidays will apply to retail employees working in these kinds of businesses.  Under these regular rules, some of these employees will still have the right to refuse to work public holidays.

For further information:
visit the Web site:
Public Holidays
http://www.labour.gov.on.ca/english/es/factsheets/fs_public.html

What if the employer does not follow the ESA?
If an employee thinks the employer is not complying with the ESA, he or she can call the Employment Standards Information Centre at 416-326-7160 or toll free at 1-800-531-5551 for more information about the ESA and how to file a complaint. Complaints are investigated by an employment standards officer who can, if necessary, make orders against an employer—including an order to comply with the ESA. The ministry has a number of other options to enforce the ESA, including requesting voluntary compliance, issuing an order to pay wages, an order to reinstate and/or compensate, a notice of contravention, or issuing a ticket or otherwise prosecuting the employer under the Provincial Offences Act.