Jan 30

Exempted from the ESA: How the ESA Regulations Exclude Certain Occupations from its Protections

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When most individuals think of the Employment Standards Act, 2000 and its purpose, they think “employee protection”. However, the ESA Regulations exclude certain occupations from protections such as overtime pay and minimum wage. This weeks’ blog post explores who is exempted, as well as some of the theories as to why. For more details, visit http://www.labour.gov.on.ca/english/es/tools/srt/

Occupations with numerous exemptions: Lawyers/ Legal Services Providers, Architects, Government Employees, Engineers, Surveyors, Teachers, Public Accountants, Dentists, Doctors, Farmers and Firefighters

Ontario’s lawyers, architects, government employees, engineers, surveyors, teachers and public accountants are exempt from a number of ESA entitlements in accordance with Ontario Regulation 285/01, including minimum wage, limits on hours of work, daily (and weekly/ bi-weekly) rest periods, time off between shifts, eating periods, overtime pay, public holiday pay and a vacation with pay.

However, you rarely see individuals of these occupations being denied basic rights such as eating periods, minimum wage and vacation pay, given the competitive nature of their respective professions and the fact that they are usually highly educated and regulated.

The occupations of farming and firefighting, while more protected, are still without key benefits. Many farmers go without a number of the protections that their white-collar counterparts do, while earning substantially less (cattle farmers had an average net operating income of $38,146.00 in 2013 in accordance with Statistics Canada’s Farm Income, Financial Conditions and Government Assistance Data Book, 2014). Firefighters, a key occupation in our society, go without limits on hours of work, daily (and weekly/ bi-weekly) rest periods, time off between shifts, overtime pay and public holiday pay. Protections they receive which many of the above occupations do not is minimum wage, eating periods and vacation pay.

Occupations with few exemptions: Automobile Manufacturers, Miners, Ambulance Drivers, Domestic Workers, Public Transit Employees

The only exemption to automobile manufacturers is that they can agree to forgo the daily rest period in favour of 8 consecutive hours off of work. Mining workers have a similar option with a longer period off of work. Both industries require that the agreement to forgo the rest period be in writing.

Ambulance drivers, while protected in other areas, are not entitled to overtime pay, which is a drawback in their occupation, which regularly involves overtime hours.

Domestic workers’ minimum wage rights differ based on whether lodging is provided, but they are afforded most protections under the ESA.

Public Transit Employees, the least protected of the “most protected”, receive all rights with the exception of daily rest periods (provided that an agreement in writing exists) and eating periods (wherein an employee has chosen a straight shift, split shift, or an employer assigned shift of their choosing).

Why Do Exemptions Exist?

After reading through this post many individuals will likely ask themselves: “Why are workers denied their minimum rights? And why are so many categories of workers affected?”

The courts have provided some answers previously. In the decision of Evangelista v. Number 7 Sales Limited 2008 ONCA 599, a decision on entitlements to ESA minimums, amongst other damages such as that for constructive dismissal, the learned O’Connor A.C.J.O. denied a car salesman vacation and public holiday pay on the basis that his employer exerted less control over his activities while on the job. The Plaintiff had spent one day a week at a car auction to drive sales, which had been the deciding factor in his autonomy.

The media has also provided coverage on the exemptions codified within the ESA’s regulations. This past May 2015, the Toronto Star published an article which outlined the complicated and at times unjust nature of the ESA’s exemptions for certain occupations (http://www.thestar.com/news/gta/2015/05/17/ontario-allowing-employers-to-fire-workers-without-cause.html).

The article began by addressing without cause terminations, which is an accepted practice, provided that an employee is provided with reasonable common law notice (in the absence of an enforceable termination clause in their contract). The Star proceeded to cover issues related to the ESA exemptions such as lack of overtime pay amongst Ontarian workers (a 2014 statistic from Worker’s Action Centre of Statistics Canada revealed that 59% of Ontarian workers went without overtime pay) as well as the shocking number of employed Ontarians who go without sick days (1.6 million, according to the same source).

Principles

Until the ESA undergoes an overhaul to its regulations and exemptions therein, there remains a number of seemingly “unjust” exemptions and provisions which can disadvantage members of the Ontario working population. This means that what may seem like an employment law issue may be in fact an issue with legislation.

If you believe you may have a legal claim for amounts owing as a result of your employment or work completed, it’s best to consult with a professional. Contact Monkhouse Law today for a free consultation.