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As the snow begins to pile up, it’s clear that it’s that time of year again: winter. With it, winter brings a different time of year for a number of our employer clients: they’re hiring “seasonal” employees.
In Canada, many businesses rely on temporary employees to boost their ranks during busy periods, particularly in the retail and recreation industries. At the end of the busy period, the employer and the employee part ways and the pattern repeats itself during the next busy season.
There is a common misconception that seasonal employees are not “true” employees or that because they are casual labour, these employees are not protected by the same rules as full-time employees. The truth is that seasonal employees are entitled to most, if not all, of the same entitlements at law as regular, year-round employees. Here are some useful starting points for employers to consider when hiring seasonal staff:
- Recognize seasonal employees as true employees: Whether an employee is a part-time, full-time or short-term employee, employers need to make remittances to the government; track and pay overtime pay; accrue and pay vacation pay; etc. These basic employment standards apply to employees of all types. An employer cannot avoid the minimum requirements of the ESA simply because an employee is hired for only a limited time.
- Other than the statutory requirements, these employees can be treated differently: Employers aren’t required to offer seasonal employees benefit coverage, RRSP matching, discounts or any other “perks” given to other employees. As long as the employer abides by the minimum employment standards and is not discriminating against the employees on any Human Rights Code-protected ground in withholding any perks, it can provide different or limited entitlements to seasonal employees. For example, in Ontario, while other employees may receive 6% vacation pay annually and 4 sick days, an employer can elect to offer contract employees only the minimum 4% vacation pay without any sick days.
- Use written documentation to limit entitlements: It is helpful to use written employment contracts that confirm that the employee’s employment is short-term with an end date that is fixed (e.g. January 15, 2017) or easily-identifiable (e.g. on the last day that the ski hill is open to the public for the 2016-17 season).[i] At the end of the season, employers should issue records of employment confirming Code A – shortage of work/layoff. In addition, the employer should use written correspondence (including email) to confirm the end date and to advise as to whether and how the employee will be hired again in the future. For example, if the employee is required to submit a written application each year along with other candidates, it is good evidence that the employee is a seasonal one and not a permanent one, which has implications on the employee’s termination entitlements.
- Don’t skirt training obligations: Seasonal employees are still required to undergo training mandated by various statutes (such as with respect to the OHSA, including regarding workplace violence and harassment, as well as the AODA). There are no exceptions for short-term employees.
Short-term employees shouldn’t be given short shrift. Employers should ensure that they meet the statutory obligations they owe to those employees and that they properly document the short-term nature of the relationship.
[i] The repeated use of fixed term employment agreements may be problematic in some circumstances. Employers should consult with an employment lawyer if it intends to offer consecutive fixed term contracts.
About the Author: Toronto Employment Lawyer Jennifer Heath is an enthusiastic lawyer who is dedicated to improving the health and productivity of her clients’ workplaces. Jennifer advises clients on a wide range of common law, contractual and statutory obligations, including those obligations under the Employment Standards Act, 2000, Labour Relations Act and the Human Rights Code. Her work also involves representing clients before the Superior Court of Justice, the Small Claims Court, the Human Rights Tribunal and the Ontario Labour Board.