If you’re an Ontario worker, chances are you’ve heard about the Employment Standards Act, 2000, SO 2000, c 41. This legislation sets out the standards employers and employees must follow regarding employment, including continuity of employment, wages, work hours, overtime, absences, and many other essential aspects of the employer-employee relationship.
However, there are exemptions to the Employment Standards Act, and only some employers or employees will be protected by its minimum standards. Additionally, some employees are covered by most, but not all, of the Employment Standards Act. This blog post will briefly overview the types of positions exempt from the Employment Standards Act and what this means for employees.
Note that the exemptions discussed below illustrate the positions exempted from the Employment Standards Act. In practice, determining whether an employee is exempt from the Employment Standards Act is sometimes unclear-cut.
Who Does the Employment Standards Act Apply To?
Before covering exemptions to the Employment Standards Act, explaining when it applies is important.
An “employee” is defined in the Employment Standards Act as:
- A person, including an officer of a corporation, who performs work for an employer for wages,
- A person who supplies services to an employer for wages,
- A person who receives training from a person who is an employer, if the skill in which the person is being trained is a skill used by the employer’s employees, or
- A person who is a homeworker (an individual who works from home but is not an independent contractor).
Under s. 3 of the Employment Standards Act, the minimum standards apply to an employee if:
- Their work is to be performed in Ontario; or
- Their work is to be performed in Ontario and outside Ontario, but the work performed outside Ontario is a continuation of work performed in Ontario.
Notably, employees and employers cannot “contract out” of the Employment Standards Act. This rule means that the terms of your employment contract must meet the Act’s minimum standards (for example, if you are an employee subject to the Employment Standards Act, your employer must pay you at least the minimum wage).
Which Employees are Exempt from the Employment Standards Act?
The Employment Standards Act lists exemptions to the Act – that is, types of employees who are not subject to the minimum standards set out in the Act. The exemptions apply to:
- Federally-regulated employees (these types of employees are regulated by the Canada Labour Code, R.S.C., 1995, c. L-2. for guidance on the types of industries and workplaces that are federally regulated, see the Government of Canada’s list of federally regulated industries and workplaces).
- Diplomatic personnel, including employees of an embassy or consulate.
- Certain students, including:
- Secondary school students completing a work experience program (providing the program is authorized by the school board where the student is enrolled).
- Individuals performing work in an approved program by a college of applied arts and technology or university.
- Individuals performing work in an approved program by a private career college.
- Participants in community participation programs (defined as “participation in community activities that contribute to the betterment of the community” in the Ontario Works Act, 1997, SO 1997, c 25, Sch A).
- Inmates participating in work projects or rehabilitation programs.
- Certain individuals who perform work under court order or sentence.
- Individuals performing work in simulated jobs or working environments for rehabilitation.
- Holders of political, religious, or judicial office and holders of elected office in organizations (such as trade unions).
- Members of quasi-judicial tribunals.
- Police officers.
- Directors of corporations.
- “Any prescribed individuals”.
Other Types of Workers Exempted from the Employment Standards Act
Additionally, the Employment Standards Act does not cover independent contractors, interns, and volunteers. If you aren’t familiar with independent contractors, or the difference between employees and independent contractors, you’ll want to check out our blog post: Employees vs. Independent Contractors: Characterizing the Working Relationship.
Prescribed Individuals Exempted from the Employment Standards Act
As the above sections demonstrate, a wide range of jobs and individuals are exempted from the Employment Standards Act. However, you may have noticed the final bullet point – “Any prescribed individuals.” So, what exactly does this mean?
Special rules cover certain industries and positions regarding how the Employment Standards Act applies to them or whether it applies at all. For example, certain prescribed positions may be required to work on public holidays or may not be entitled to minimum wage. Some of the “prescribed” positions identified under this section include:
- EMS, healthcare, and health professionals
- Manufacturing, construction, and mining professionals
- Hospitality services and sales
- Agriculture, growing, breeding, keeping, and fishing
- Household, landscaping, and residential building services
- Government employees and professionals
- Student employees
- Homeworkers (an individual who works from home but is not an independent contractor)
- Embalmers and funeral directors
- Continuous operation employees (e.g., employees who work at a business that operates 24 hours a day and never shuts down or shuts down no more than once a week)
- Temporary help agency employees
- Film and television employees
The Ontario government’s industries and jobs with exemptions or special rules page list rules and exemptions for these positions or types of employees.
What the Employment Standards Act Exemptions Mean for Employees
As a starting point, it’s critical to determine whether your position is exempt from the Employment Standards Act or defined as a “prescribed class” to ensure you understand your employment rights. If your position is exempt or you fall into a prescribed class, ensure you clearly understand your employment contract, your rights, and any limitations therein.
Every job is unique, and we recognize that it isn’t always easy to determine whether the Employment Standards Act covers you. If you have any questions regarding whether the Act applies to you, be sure to consult with an employment law lawyer for further guidance.
Contact Ottawa Employment Lawyers at Tierney Stauffer LLP
Whether you’re an employee or an employer, the experienced lawyers at Tierney Stauffer LLP can provide advice for various employment concerns, including contracts, terminations, and much more. To discuss your legal matter with a member of our employment team, contact Tierney Stauffer LLP in Ottawa, Eastern Ontario, and North Bay at 1-888-799-8057 or contact us online to schedule a consultation.