July 22 2019 (updated from an earlier post)
It’s always fun to discuss with my Employment Law students the whacky and incoherent exclusions from employment standards legislation in this country. Try your hand at this fun game we sometimes play in my class. It’s called:
Is this job excluded from ESA protections?
Over time, governments in Ontario (and across Canada) have created all sorts of exemptions and special rules to prevent general employment standards rules from applying to all segments of the labour market. These assignment examine exemption from statutory minimum wage and overtime as examples. Ready?
Is an employee on an alpaca farm entitled to the minimum wage in Ontario?
1. The General Minimum Wage in Ontario is $14.00 (in 2019).
Note firstly that the ESA only applies to employment contracts, so any worker not categorized as an “employee” is excluded from the minimum wage law and every other employment standard. Now let’s consider which employees are excluded from that general minimum wage. For each category, can you think of a strong policy reason for the special rule or exemption?
2. The following employees are excluded altogether from the minimum wage:
- A person performing work as part of an educational co-op program through a school
- A person performing work as part of the Ontario Works Act
- An inmate or person performing work as part of a criminal conviction sentence
- A person performing work as part of a physical rehabilitation program
- A holder of political, religious, or judicial office
- An elected officer of an organization, including a union
- A police officer
- Employees of the Ontario Crown
- A Director of a corporation
- a person who is a full-time student who works at a recreational program operated by a charitable organization
- a person who is a full-time student who is employed to instruct or supervise children
- a person who is a full-time student who works at a camp for children
- a person who is employed as the superintendent, janitor or caretaker of a residential building and resides in the building
- massage therapists
- medical doctors
- students training to practice in a profession listed above
- commercial fishers
- real estate agents
- commissioned travelling salespersons
- employees employed on a farm whose employment is directly related to the primary production of eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, herbs, pigs, cattle, sheep, goats, poultry, deer, elk, ratites, bison, rabbits, game birds, wild boar and cultured fish.
3. The following employees are subject to a special minimum wage that is more or less than the general minimum wage
- A full-time student under the age of 18 who works 28 hours per week or less or during a school holiday
- An employee who regularly serves liquor
- An employee who is a hunting or fishing guide
- A ‘homeworker’
- An employee who receive room and board from the employer.
Have you answered the questions? Hint: one of the farm employees in our questions is entitled to the minimum wage and one is not.
Harder question: Can you think of ANY policy rationale for the different legislative treatment?
Is a person employed at a mushroom farm entitled to overtime pay?
How about a person who breeds minks?
Isn’t this fun?