Employment Law Considerations for Working with Migrant Workers

1. Working with Migrant Workers: Employment Law Considerations Presented on September 23, 2015

2. Working with Migrant Workers General Overview This presentation will provide you with an overview of some employment law issues that a migrant may face during their employment.

3. Working with Migrant Workers Anna’s Story Anna comes to you because she is concerned about her working conditions. She is a 35 year-old woman who came to Canada through the live-in caregiver program. She works for the Smiths, taking care of their 1 year-old and 7 year-old children. Smiths pay her $11.00 per hour. The Smiths supposedly pays her $440.00 gross every week, but Anna receives less after deductions. Anna does not receive pay stubs. Anna also tells us that she works 12 hours per day, 6 days per week.

4. Employment Standards Act ESA: General Overview The Employment Standards Act (“ESA”) outlines the basic rights of workers in Ontario. However, some workers are not covered by the ESA and there are special exemptions to many of the ESA protections. While we will discuss few of the exemptions, the information in this presentation does not cover all the exemptions.

5. Employment Standards Act Minimum Wage Minimum Wage Rate (Currently) General $11.00 per hour Students $10.30 per hour Server of Liquor $9.55 per hour Minimum Wage Rate (After October 1, 2015) General $11.25 per hour Students $10.55 per hour Server of Liquor $9.80 per hour

6. Employment Standards Act Overtime You are entitled to 1½ times your regular rate of pay for every hour worked over 44 hours per week. You can agree in writing to average the hours you work over periods of two or more weeks to calculate overtime pay. • You have the right to refuse to agree to this practice.

7. Working with Migrant Workers Anna’s Story You schedule Anna for another appointment with you. You ask her to bring all relevant documents to the next meeting. A week later, Anna returns. Apparently, Anna asked the Smiths for a breakdown of her wages. The Smiths told her that in addition to taxes, they are deducting $85.25 per week for room and board and $50.00 per week for recouping LMIA application fee. Anna also brought a document titled “Nanny Duties”. In it, the Smiths wrote, “The youngest child should take a nap between noon and 3 p.m. During this time, you can do as you please but you must remain at the house in case the child wakes up.”

8. Employment Standards Act Pay Statements With each pay, the employer must provide you with a pay statement which outlines the gross pay, how the gross pay was calculated, amount and purpose of each deduction from wages, and the net amount of wages being paid.

9. Employment Standards Act Room and Board If you started working after November 30, 2014 under the Caring for Children Pathway or the Caring for People with High Medical Needs Pathway, employers are not allowed to charge a live-in caregiver for room and board. For any other live-in caregivers, the employer can charge up to $85.25 per week for room and board.

10. Employment Standards Act Deductions Other than for statutory deductions, e.g. taxes, an employer cannot deduct from your wages unless there is a written agreement. Even with a written agreement, an employer cannot withhold or deduct your wages for (1) faulty work or lost property, (2) costs of hiring you, e.g. recruitment agency fee.

11. Employment Standards Act Work Deemed to be Performed You must be paid even if you are not actively working, if you have to remain at your employer’s workplace, e.g. watching T.V. while the baby naps. If you are allowed to leave the workplace, without the children, to perform your own personal tasks, this time can be unpaid.

12. Working with Migrant Workers Anna’s Story Anna tells you that the Smiths are rude to her and generally unreasonable. For example, Anna asked the Smiths if she could take two weeks off during Christmas time to visit her family back home, but the Smiths refused stating that they need her to work during that time. You talk to her about what she should do to protect herself at work.

13. Employment Standards Act Vacation Pay After 1 year of working with the same employer, you are entitled to take off 2 weeks of paid vacation. • Your employer can tell you when you can take your vacation. • Your employer can’t make you take your vacation in less than one week increments. If you don’t take your paid vacation, then you are entitled to 4% of your gross wages as vacation pay.

14. Employment Standards Act Public Holiday Pay If you work your regularly scheduled shifts before and after a public holiday, then you are entitled to holiday pay even if you did not work on the Public Holiday. Public Holiday pay is calculated by dividing the previous 4 work weeks’ regular and vacation pay by 20.

15. Employment Standards Act Working on Public Holidays If you work on a Public Holiday, you can agree in writing to either: • Be paid both Premium Pay (1½ times the hourly rate for all hours worked) AND Public Holiday Pay OR • Work the Public Holiday at your regular rate of pay AND take another day off with Public Holiday pay.

16. Working with Migrant Workers Anna’s Story Anna visits you a month later. She tells you that she no longer works for the Smiths. On her last day of Anna and one of the Smith argued about Anna allegedly not doing the laundry properly. They then had the following exchange: Anna: If you don’t like my work, you should fire me. I don’t know if I want to work for you anyway. Smith: If you want to quit, then go ahead. There are plenty of people who wants your job. Anna: If that’s how you are going to be, then I will finish my day and leave. Smith: You can leave immediately.

17. Wrongful Dismissals Basic Principles in Wrongful Dismissal Generally, an employer can dismiss an employee as long as the employer gives the employee sufficient notice or pay in lieu of notice. There are certain exceptions to the above rule. For example, an employer cannot dismiss an employee, even with sufficient notice, if the reason for the dismissal contravenes the Human Rights Code. An employer does not have to give an employee notice or pay in lieu of notice if the dismissal is for cause, wilful misconduct, disobedience, or wilful neglect of duty that is not trivial, or the employee resigned (unless the resignation was actually constructive dismissal).

18. Wrongful Dismissals Legislated Minimums in the Employment Standards Act Termination Pay 3 months to 1 year of service = 1 week pay 1 year to 3 years of service = 2 weeks pay 3 years to 4 years of service = 3 weeks pay 4 years to 5 years of service = 4 weeks pay 5 years to 6 years of service = 5 weeks pay 6 years to 7 years of service = 6 weeks pay 7 years to 8 years of service = 7 weeks pay 8 years and up = 8 weeks pay

19. Wrongful Dismissals Legislated Minimums in the Employment Standards Act • Severance Pay • 1 week pay x (number completed years of employment + number of completed months of employment in the incomplete year / 12) • Severance pay entitlement cannot exceed 26 weeks pay • In order to qualify for severance pay, the employee must have at least 5 years of employment AND the employer must have an annual payroll of more than $2.5 million or dismissed 50 or more employees in the previous 6 months.

20. Wrongful Dismissals Common Law Common law considers various factors in order to calculate the appropriate notice period. There are, however, four main factors that the Courts always consider: age, length of service, availability of similar employment, and character of employment.

21. Working with Migrant Workers Anna’s Story Anna is currently staying at a friend’s place. She has no source of income. She found a prospective employer, who is willing to hire her but he wants her to work immediately even prior to receiving government approval. Anna wants to know as to what are her options

22. Employment Standards Act ESA Claim Process ESA Claim (online, mail, or fax) | ESO Level 1 | ESO Level 2 | Order to Pay or Refusal to issue Order to Pay | Application for Review to OLRB | Labour Relations Officers Meeting | OLRB Hearing

23. Employment Insurance Act Employment Insurance Benefits Employment Insurance (“EI”) Regular Benefits is available to employees who lose their employment. You may qualify for EI Regular Benefits even if your work permit is no longer valid. However, you will not qualify for EI Regular Benefits if: • You do not have enough insurable hours • You lost your employment due to your misconduct • You quit your employment without just cause • You are not ready, willing, and capable of working

24. Employment Insurance Act Regular Benefits: Insurable Hours How many insurable hours do you need? • You need to have a certain number of hours of employment in a qualifying period (52-week period immediately before the beginning of a benefit period). • The required number of hours fluctuates with the local unemployment rates but it will be between 420 and 700 hours of insurable employment, as long as you accumulated at least 490 hours of participation during the labour force attachment period (52 week period before the qualifying period). • If you do not have your 490 hours of participation, you need to have at least 910 hours of insurable employment.

25. Employment Insurance Act Regular Benefits: Insurable Hours Labour Force Qualifying Period Benefit Period Attachment PeriodIf LFA ≥ 490, then 420 – 700 14 – 45 weeks of If LFA < 490, then 910 paid benefits 52 weeks 52 weeks 52 weeks Date of interruption of earnings or date of claim, whichever is later

26. Employment Insurance Act Regular Benefits: Insurable Hours

27. Working with Migrant Workers Edgar’s Story Edgar, a 55 year-old Jamaican national, came to Canada through the Temporary Foreign Workers Program. He works on a tomato farm as a harvester. His contract and visa is for two years. He came to see you because he suffers from hepatitis, and he is having keeping up with the work pace. His employer is constantly yelling at him to work faster.

28. Ontario Human Rights Code General Overview Every person has the right to equal treatment with respect to employment without discrimination and the right to be free from harassment in the workplace because of: • Race • Ancestry • Place of origin • Colour • Ethnic origin • Citizenship • Creed • Sex • Sexual orientation • Gender identity • Gender expression • Age • Record of Offences • Marital status • Family status • Disability

29. Ontario Human Rights Code General Overview If the discrimination or harassment is not based on one of the “grounds”, then the Code does not apply. Even if the discrimination is based on one of the grounds, the Code allows for certain types of discrimination. For example, an employer can discriminate against a person if the discrimination is reasonable and bona fide.

30. Ontario Human Rights Code Disability “Disability” means any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness. “Disability” also includes mental illnesses, developmental disability, drug and alcohol dependency. However, temporary illnesses that everyone experiences from time to time such as the common cold or the flu are not considered to be “disability”.

31. Ontario Human Rights Code Employment and Disability If you have a disability, you have the right to be provided with equipment, services or devices that will allow you to do your job, this is your employer’s “duty to accommodate”. Employers can only decline to accommodate if they can prove that accommodation would amount to “undue hardship”. This is determined by examining: • The costs of the accommodation. It is important to note that the mere fact that the employer will have to spend money is not “undue hardship”. • Whether outside sources of funding can help alleviate the costs • Any effect on the health and safety of others.

32. Ontario Human Rights Code Human Rights Complaint Process Application filed with HRT | HRT sends acknowledgment letter | HRT checks Application for completeness. If so, forwards it to the Respondent. | Respondent files Response with HRT | HRT checks Response for completeness. If so, forwards it to the Applicant. | If desired, Applicant may file a Reply to the Response | If both parties agree, HRT schedules a mediation meeting. | If the parties do not agree to mediation or if mediation fails, HRT schedules a hearing

33. Working with Migrant Workers Edgar’s Story Edgar goes to his local medical clinic and talks to a doctor about his illness. The doctor provides Edgar with a handwritten note, which says in its entirety, “Need to be off work for 6 weeks, then return to light duties further notice.” When Edgar gives the note to his employer, the employer complains that the note is vague and he needs more information. Specifically, the employer wants to know from what illness or injury Edgar suffers and what exactly does light duties entail.

34. Employment Insurance Act Employment Insurance Sickness Benefits EI Sickness benefits are for workers who are unable to work due to injury or sickness. Sickness benefits may be paid up to 15 weeks. You need 600 hours in the qualifying period to qualify. This rate does not fluctuate. You do not have to be terminated to get Sickness benefits.

35. Working with Migrant Workers Edgar’s Story After receiving EI sickness benefits for 4 weeks, Edgar returns to work. He is placed on light duties. His employer does not pay Edgar by the hour. He pays Edgar by piece work rate or by the amount of tomatoes picked. Edgar calculates that, on average, he earns $9.00 per hour.

36. Employment Standards Act Special Rules for Farm Workers If you are a farm worker whose work is directly related to the primary production of eggs, grains, fruit, vegetable, cattle, etc., you are not entitled to minimum wage, overtime pay, public holiday pay, and vacation pay. If you are a farm worker who harvests fruit, vegetable, or tobacco for marketing and storage, you are not entitled to overtime pay. You are entitled to minimum wage, public holiday pay, and vacation pay, but special rules apply for you to qualify for these entitlements. If you are a seasonal worker whose work is directly related to canning, processing, and packing of fresh fruits or vegetables, you are only entitled to overtime pay after 50 hours per week. You are entitled to minimum wage, public holiday pay, and vacation pay.

37. Working with Migrant Workers Edgar’s Story Edgar complains to his employer that he should be paid the minimum wage. The employer yells, “First you complain to get light duties, but now you want me to pay you more for doing less work?” The employer then leaves on a huff. Next week, Edgar notices in his next pay cheque that he is receiving $11.00 per hour now. However, the employer also gives him two disciplinary letters admonishing him for events that occurred months ago. A week later, the employer catches him coming in to work 5 minutes late, then fires him for “three strikes”.

38. Employment Standards Act ESA Reprisal • Section 74 of ESA prohibits employers from penalizing a worker for asserting their employment standards rights. • If there was reprisal, the Ministry of Labour can, among other remedies, order the employer to reinstate the worker, pay the worker for any loss of wages, and/or compensate the worker for pain and suffering. • The employer has the burden of proof in reprisal claims

39. Working with Migrant Workers Contact Us John No Staff Lawyer, Workers’ Rights Division Mary Thibodeau Law Student, Workers’ Rights Division Parkdale Community Legal Services 1266 Queen Street West Toronto, ON M6K 1L3 Phone: 416-531-2411, ext. 227 Email: noj@lao.on.ca