Employment Standards Act - Hiring in Canada

What are homeworkers?

Homeworkers are employees who do paid work out of their own homes for an employer (e.g., online research, preparing food for resale, sewing, telephone soliciting, manufacturing, word processing).

Independent contractors are not homeworkers under the ESA.

Are homeworkers the same as domestic workers?

No, homeworkers are not the same as domestic workers. Homeworkers do paid work out of their own homes for an employer. In contrast, domestic workers work in a private home directly for the person who owns or rents the home. They do things such as housekeeping and cooking, or provide care, supervision or personal assistance to children or people who are elderly, ill or disabled.

Here is an example of the difference between homeworkers and domestic workers: employees who prepare food at home for resale by their employer are homeworkers, but employees who prepare food in a private residence for the people living there to eat are domestic workers.

What rights do homeworkers have under the ESA?

Homeworkers are eligible for:

emergency leave
equal pay for equal work
family medical leave
hours of work protections (i.e., maximum hours of work, and daily and weekly/biweekly rest periods)
minimum wage premium
overtime pay
pregnancy and parental leave
public holidays
regular payment of wages
- wages are paid on a recurring pay period on a recurring pay day, and
- written wage statements are provided for each pay.
severance pay
termination notice and pay
vacation with pay
written job details.

Note: there are rules about qualifying for some of the ESA protections listed above.

This fact sheet provides a brief overview of a homeworker's rights regarding minimum wage, overtime, hours of work and rest/eating periods, public holidays, vacations, written job details and records employers must retain.

What is the minimum wage rate for homeworkers?

Minimum wage is the lowest hourly wage an employer can pay employees.

There is a special minimum wage rate for homeworkers. A homeworker is entitled to a minimum wage that is 110% of the general minimum wage rate

Both full-time and part-time homeworkers are entitled to this rate. Students of any age who are employed as homeworkers must also be paid the homeworkers' minimum wage.

Minimum Wage Rate	January 1995	February 1, 2004	February 1, 2005	February 1, 2006	February 1, 2007
Homeworkers Minimum Wage (110 per cent of the general minimum wage)	$7.54 per hour	$7.87 per hour	$8.20 per hour	$8.53 per hour	$8.80 per hour
General Minimum Wage	$6.85 per hour	$7.15 per hour	$7.45 per hour	$7.75 per hour	$8.00 per hour

If homeworkers are paid piece-work rate, how do they know whether they are receiving the equivalent of minimum wage?

The amount that a homeworker is paid must be at least equal to minimum wage. Homeworkers who are paid on a piece-work rate--a way of calculating pay that is based on the amount of work an employee completes, and not on the hours worked--can calculate whether they are being paid at least the minimum wage in the following way:

Take the total amount earned over the pay period and divide it by the number of hours worked in the same period for an average hourly rate. Compare that amount to the homeworkers' minimum wage rate in effect over that same pay period. (If overtime hours were worked, the calculation is more complicated.)

For example, a homeworker received $195.00 as piece-work pay for the pay period May 1 to May 15, 2004 as payment for 25 hours of work in that pay period. The homeworker received the equivalent of $7.80 an hour in that pay period but the homeworkers' minimum wage rate in effect from February 1, 2004 was $7.87.

Based on the homeworkers' minimum wage, the employee should have earned at least $196.75.

Result: The employer must therefore pay an additional $1.75 to the employee ($196.75 minus $195.00).

Please see What written job details must an employer give a homeworker? below for information on the requirement that homeworkers' wage statements include the amount of the piece-work rate(s).

Do homeworkers get overtime pay?

Most employees, including homeworkers, must receive overtime pay for each hour worked in excess of 44 hours in a work week. (See the chart in the "How are You Covered by the ESA?" Fact Sheet for jobs with exceptions to the usual overtime rules).

Overtime pay is at least 1� times the employee's regular rate of pay. (This is often called "time and a half.") The "regular rate" of an employee who is paid a piece-work rate is calculated by dividing the wages earned in a work week by non-overtime hours worked in that week.

An employee and an employer can agree in writing that the employee will receive paid time off work instead of overtime pay. In this case, the employee must be given 1� hours of paid time off work for each hour of overtime worked. The paid time off must be taken within three months of the work week in which it was earned or, if the employee agrees in writing, within 12 months of that work week.

Overtime pay is calculated on a weekly basis. An employee and an employer may agree, in writing, to average the employee's hours of work for a period of not more than four weeks, for the purpose of calculating the employee's overtime entitlement.

If an employee's job ends before he or she has taken the paid time off, the employee must receive overtime pay for the overtime hours worked no later than seven days after the date the employment ended, or on what would have been the employee's next pay day, whichever is later.

Can homeworkers agree not to get overtime pay?

No, a homeworker and employer can't agree that the homeworker will give up the right to overtime pay. Overtime is an entitlement under the ESA, and this legal entitlement can't be given up.

In addition, employers can't reduce a homeworker's regular rate to avoid paying time and a half pay after 44 hours in a work week. For example, if Jos�e's regular rate is $12.00 an hour, her employer can't drop her regular rate to $8.00 an hour and then pay her 1.5 times $8.00 an hour for overtime hours worked.

What are the maximum hours of work for homeworkers?

For most employees, including homeworkers, the maximum number of hours they can be required to work is:

These hours of work maximums may be exceeded by written agreement between the employee and employer. However, employees cannot work more than 60 hours a week unless the Ministry of Labour's Director of Employment Standards approves the agreement between the employer and the employee. Generally, an agreement can be cancelled with two weeks written notice by the employee and reasonable notice by the employer. For further details see the "Hours of Work & Overtime" Fact Sheet.

What hours free from work are homeworkers entitled to?

Most employees, including homeworkers, are entitled to a certain number of hours free from having to work.

This employment standard cannot be altered by a written agreement between the employer and employee. It applies even if:

An employee must receive 11 consecutive hours off work each day, which means the work day may not exceed 13 hours (12 hours of work with two 30-minute meal breaks: see What eating periods and breaks are homeworkers entitled to? later in this Fact Sheet).

Between shifts

This rule doesn't apply if the total time worked on both shifts is not more than 13 hours. For example, a homeworker working a split shift or back-to-back shifts wouldn't need to receive eight hours off between shifts as long as the total time worked on the two shifts didn't exceed 13 hours.

An employer and employee can agree in writing that the homeworker will receive less than eight hours off work between shifts.

Weekly or Biweekly

This requirement cannot be altered by a written agreement between the employer and employee.

What eating periods and breaks are homeworkers entitled to?

An employee must not work for more than five consecutive hours without getting a 30-minute eating period (meal break) free from work. However, if the employer and employee agree, the meal break may be taken as two shorter breaks within a period of five hours. Together the two meal breaks must total at least 30 minutes. This agreement can be oral or in writing.

Meal breaks are unpaid unless the employee's employment contract requires payment. Even if the employer pays for meal breaks, the employee must be free from work.

Meal breaks, whether paid or unpaid, aren't considered hours of work, and aren't counted toward overtime.

Are homeworkers entitled to public holidays?

Most employees, including homeworkers (full-time and part-time) are entitled to take public holidays off work and be paid public holiday pay. It doesn't matter how recently the employees were hired or how many days they worked before the public holiday.

If the employee agrees in writing to work on the holiday, the employer must pay the employee wages at his or her regular rate for the hours worked on the public holiday and give the employee a substitute day off with public holiday pay. However, if the employer and employee agree in writing, the employee is entitled to public holiday pay for the day, along with premium pay of at least time and a half the employee's regular rate for each hour worked on the public holiday. To determine how much public holiday pay an employee would be entitled to, see the "Public Holiday" Fact Sheet.

Note: Most employees who don't meet either of these qualifying criteria are entitled to be paid premium pay (time and a half) for every hour they work on the holiday.

* Employees are generally considered to have "reasonable cause" for missing work when something beyond their control--such as illness, for example-prevents them from working.

Do homeworkers get vacations?

Most employees, including homeworkers, are eligible for a minimum of two weeks of vacation with pay after each 12 months of employment, starting from the date they are hired.

If the employer establishes a 12-month vacation entitlement year that does not start on the anniversary date of the employee's hire, the employee is also entitled to a pro-rated amount of vacation with pay for the period (stub period) before the 12-month vacation entitlement year begins.

Vacation pay is calculated as at least four per cent of the employee's "gross" wages (excluding vacation pay and before any deductions) earned in the period for which the vacation is being given.

Employees who do not complete either the stub period or 12-month vacation entitlement year don't qualify for vacation time. However, employees earn vacation pay as they earn wages, so they will be entitled to at least four per cent of the wages they have earned as vacation pay.

For further details, including information about when and how vacation may be taken, see the "Vacation" Fact Sheet.

What written job details must an employer give a homeworker?

Certain requirements apply only to homeworkers. Employers must advise homeworkers in writing of:

* "Manufacture" includes preparation, improvement, repair, alteration, assembly or completion.

Employers must keep detailed records of hours worked, wages and deductions. They must give all employees a written wage statement with each pay that shows the full details of the pay period.

Please see What kind of information must employers keep?, below, for details about vacation time and vacation pay information and about the employee's right to this information.

What kind of information must employers keep?

Employers who employ homeworkers are required to keep a register containing the name, address and wage rate(s) of the homeworker. This must be kept for three years after the homeworker has stopped working for the employer.

In addition, all employers in Ontario, including anyone who employs homeworkers, must keep written records about each person they hire.

Employee records can be retained either by employers or by someone else on their behalf, but must be readily available for inspection. The period of retention varies depending on the information. For example, the employee's name, address and starting date must be retained for three years after the employee ceases to be employed by that employer. The number of hours the employee worked in each day and each week must be retained for three years after the day or week in question.

Exception to the rule: hours of work records

If an employee receives a fixed salary for each pay period, and the salary doesn't change unless the employee works overtime, the employer is only required to record:

What if the employer does not follow the ESA?

If an employee thinks the employer is not complying with the ESA , he or she can call or visit the nearest Ministry of Labour office to discuss a particular situation or to file a complaint. Complaints are investigated by an employment standards officer who can, if necessary, make orders against an employer - including an order to comply with the ESA. The ministry has a number of options to enforce the ESA, including requesting voluntary compliance, issuing an order to pay wages, an order to comply, an order to compensate, an order to reinstate and/or a notice of contravention, or issuing a ticket or otherwise prosecuting the employer under the Provincial Offences Act.