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Does Employment Status Make a Difference When Dealing with Employment Standards Entitlements?

by Kimberly Fiume | on Jul 14, 2014 | No Comments

We are regularly asked if part-time employees qualify for employment standards protection and or entitlements under that legislation. Interestingly enough I always respond the same way. Regardless of the terminology an employer labels an employee, it truly makes no difference when it comes to determining rights and entitlements under employment / labour standards legislation.

To further qualify the response, there is the fact that each jurisdiction does have exclusions/exemptions from various sections of the legislation. As a result, (and based on the circumstances of the situation) employers are reminded to review the legislation prior to making any final decisions. The last qualification made is to ask whether or not the employee is governed by a collective bargaining agreement (CBA). Obviously, the CBA rises above employment/labour standards laws unless the CBA does not address the particular topic.

As an example, let us look at the topic of vacation. Regardless of an employee’s status with the employer, all jurisdictions provide vacation pay and time entitlements. Just because an individual is considered part-time by an employer’s definition does not mean that the part-time employee is not entitled to vacation time off and vacation pay under the legislation.

On the other hand, it is true that certain types of employees are excluded from the hours of work legislation. For instance, in most (but not all jurisdictions), Managers are excluded from overtime entitlements. It is important to keep in mind that there are specific definitions for Manager exclusions. Based on continuing overtime class-action suits currently in the courts, employers are cautioned to be sure their situation warrants an exclusion.

There are certain Industry exemptions along with certain types of Employment exemptions so we remind employers to always refer to the specific legislation and or regulations to determine whether or not a particular exclusion in the circumstance is necessary.

Included in the jurisdictional summar that follows is the definition of employee within each jurisdiction. Notice that there is no mention of the type or status of employee i.e. part-time/temporary/full-time etc.

Alberta 
“employee” means an individual employed to do work who receives or is entitled to wages and includes a former employee.
Do part-time employees qualify for vacation and vacation pay?  Yes, all employees including part-time employees qualify for vacation time and vacation pay.

British Columbia
Employee includes:
• a person, including a deceased person, receiving or entitled to wages for work performed for another,
• a person an employer allows, directly or indirectly, to perform work normally performed by an employee,
• a person being trained by an employer for the employer’s business,
• a person on leave from an employer, and a person who has a right of recall.
Persons working in an employment relationship are employees for the purposes of the Act, regardless of whether they are employed on a part-time, full-time, temporary or
permanent basis.

Manitoba 
“employee” means an individual who is employed by an employer to do work, and includes a former employee but does not include a director of a corporation in relation to that corporation;.
Employment standards legislation covers employees whose workplaces are under provincial jurisdiction. Almost 90% of all workplaces in Manitoba fall under provincial jurisdiction.  Some professionals, some employees working in agriculture and independent contractors are exempt from The Employment Standards Code.

New Brunswick 
“employee” means a person who performs work for or supplies services to an employer for wages, but does not include an independent contractor.
Who is covered by the New Brunswick Employment Standards Act? Most employers and employees are covered by the Employment Standards Act. The Act does not distinguish among part-time, full-time and casual employees. All employees, which include seasonal and construction workers, are entitled to the minimum employment rights outlined in the Employment Standards Act.

Newfoundland and Labrador 
“employee” means a natural person who works under a contract of service for an employer.
The minimum standards of employment outlined apply to all employees regardless of the number of hours worked each week. The legislation does not differentiate between full-time and part-time employees. The application of some of the provisions depend on, in some cases, on the length of time an
employee has been employed.

Northwest Territories/Nunavut 
“employee” means a person employed to do skilled or unskilled manual, clerical, technical, operational or administrative work.
The Employment Standards Act applies to most employees and employers that perform work in the Northwest Territories and or Nunavut and sets out the minimum employment standards for the
NWT/NU.

Nova Scotia
“employee” means a person employed to do work and includes a deceased employee but does not include:
•a teacher employed by Her Majesty, the Minister of Education, a school board as defined in clause (c) of Section 2 of the Education Act, or other employer, to teach, supervise or
administer in a public school, a school established or maintained under the Education Act or in a school system.
Some types of work are significantly different from other work, and in some of these cases, the usual rules of the Code may not be appropriate. For example, the Code recognizes
that sometimes logging and forestry workers may agree to be paid by the cord instead of at least minimum wage so the Minimum Wage Order Logging and Forestry Operations allows for this type of payment.

Ontario 
“employee” includes,
(a) a person, including an officer of a corporation, who performs work for an employer for wages,
(b) a person who supplies services to an employer for wages,
(c) a person who receives training from a person who is an employer, as set out in subsection (2), or
(d) a person who is a homeworker, and
includes a person who was an employee.
The Employment Standards Act, 2000 (ESA) establishes minimum employer obligations and employee rights with respect to rates of pay, hours of work and overtime,
vacations, public holidays, leaves of absence and more. The ESA applies to most employees and employers in Ontario.

Prince Edward Island 
“employee” means a person who performs any work for or supplies any services to an employer for pay, and includes
(i) a person who is on leave from an employer,
(ii) a person who is being trained by an employer to perform work for or supply services to the employer, or
(iii) a person who was an employee.
The Employment Standards Act applies to all employers and employees with some exceptions.

Quebec 
“employee” means a person who works for an employer and who is entitled to a wage; this word also includes a worker who is a party to a contract, under which he or she:
i) undertakes to perform specified work for a person within the scope and in accordance with the methods and means determined by that person;
ii) undertakes to furnish, for the carrying out of the contract, the material, equipment, raw materials or merchandise chosen by that person and to use them in the manner indicated
by him or her; and
iii) keeps, as remuneration, the amount remaining to him from the sum he or she has received in conformity with the contract, after deducting the expenses entailed in the
performance of that contract.
The definition of the word “employee” includes two major elements. The first establishes that an employee is a person who carries out work for an employer and who is entitled to a
wage; this is a contract between a natural person who hires out his services and another person (natural or legal) who accepts such hiring of services in consideration of pay. One notes in this relationship the presence of the following elements: existence of a position of authority, establishment of a work context, economic dependence related to the source of income (legal subordination). The contract may be written or verbal. This is the understanding of a classic employee. There cannot be a contract of employment without consideration, a remuneration that the employer undertakes to pay. In this sense, the contract of employment differs from voluntary work. Moreover, the Act respecting labour standards does not deny the existence of voluntary work.

Saskatchewan 
“employee” means a person of any age who is in receipt of or entitled to any remuneration for labour or services performed for an employer.
The Act applies to most employees and employers in the province. There are some groups who are not covered.
These include, but are not limited to, the following:
• federally-regulated businesses and industries;
• sitters;
• family businesses; and
• the self-employed.

Yukon 
“employee” includes:
a) a person, including a deceased person, in receipt of or entitled to wages for employment or services performed for another;
b) a person being trained by an employer for the purpose of the employer’s business; c) a contract worker; and
d) a person who was an employee.
The Employment Standards Act applies in all respects to salaried employees as it does to hourly paid employees.

 

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