Can anyone explain to me why the Federal government, using taxpayer money, is conducting a detailed investigation and hearings into Ruby Dhalla’s nannies’ working conditions? Wouldn’t this normally be a matter for a complaint and investigation under the Ontario Employment Standards Act?
What does the ESA say about live-in nannies, anyhow? My understanding is that a live-in nanny is a ‘domestic worker’ under the Ontario ESA, which is defined in Section 1 of Regulation 285/01 as:
a person who is employed by a householder to perform services in the household or to provide care, supervision or personal assistance to children, senior or disabled members of the household, but does not include a sitter who provides care, supervision or personal assistance to children on an occasional, short-term basis
Domestic workers are generally entitled to the same benefits under the ESA as other employees, including minimum wage, overtime pay, holiday pay, etc. However, there are some special rules that apply to domestic workers, which appear in section 19 of the Regulation.
One problem that often arises in regards to a live-in employee is whether they are ‘working’ when they are required to be at the home, although other adults (such as the children’s parents) are also home. In other words, when does work stop. When I worked at Parkdale Community Legal Services as a law student years ago, I saw this problem often, because many nannies were told that they must stay home in case they are needed. Our position was that if an employee is ‘on-call’, required to be available for work, then they are working. In other words, you are either at leisure (in which you can go anywhere you like) or you are at work. That interpretation is supported by the definition of when ‘work’ is performed in section 6 of the Regulation.
That section says that a person is working when, “the employee is not performing work and is required to remain at the place of employment, waiting or holding himself or herself ready for call to work.” The OLRB decision called Pacaldo v. Dolega-Kamienski Estate (2003) provides a nice summary of this area of the law. It considers whether a person is working when they are sleeping at the home of the employer and on-call in case work arises.
INTERCEDE, an organization that advocates on behalf of homeworkers, has prepared a very nice overview of the employment standards rules as they apply to homeworkers like nannies and other caregivers who work at their employer’s home. If you are a homeworker and believe your employer is not complying with these rules, I recommend you contact Intercede, who do very good work in this area.