Before you read this document, please read the General Information Fact Sheet and find out if the ESA applies to you.
Province of Ontario
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.
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.
Homeworkers are eligible for:
Regular payment of wages means that there is a recurring pay period and a recurring payday with wages paid out at the workplace or another agreed to location, and written wage statements are provided on or before each payday.
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.
There is a special minimum wage for homeworkers. A homeworker is entitled to wage that is 110% of the general minimum wage rate.
Note: This wage applies to all homeworkers whether they are full-time or part-time, or students under 18 years of age.
This extra pay is to cover employees' costs in providing their own workplace (e.g. electricity, heat, space).
Minimum wage is the lowest hourly wage an employer can pay employees.
The amount that a homeworker is paid must be at least equal to minimum wage. Homeworkers who are paid by 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 minimum wage in the following way:
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).
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 at for jobs with exceptions to the usual overtime rules.
Overtime pay is at least 1½ 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 1½ 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 the later of seven days after the date the employment ended, or on what would have been the employee's next payday.
Note: If certain conditions are met, an employer may average hours for overtime purposes before an approval is received from the Director of Employment Standards.
Prior to March 1, 2005, employees and employers could enter into averaging agreements for the purposes of determining overtime entitlements but only agreements to average over periods of four weeks or longer required the approval of the Director of Employment Standards. Averaging agreements entered into under the law as it read before March 1, 2005 and that have not expired or been revoked continue to be valid agreements on and after March 1, 2005. However, as of that date, employers with overtime averaging agreements were required to obtain an averaging approval from the Director of Employment Standards. (Approvals given before March 1, 2005 for averaging agreements for four weeks or longer, were terminated as of February 28, 2005 and a “new” approval is required.)
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 Josée'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.
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, an agreement to work more than 48 hours a week is not valid unless, prior to making the agreement, the employer gives the employee the Information Sheet About Hours of Work & Overtime prepared by the Ministry of Labour's Director of Employment Standards that describes the hours of work and overtime rules in the ESA. Generally, the employer must also obtain an approval from the Director of Employment Standards before employees may work more than 48 hours in a work week. However, if certain conditions are met, the employee may work those excess hours to a maximum of 60 hours per week before the approval from the Director is actually received. Generally, an agreement to work excess daily or weekly hours 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.
Prior to March 1, 2005, employees and employers could agree to work excess daily and weekly hours up to 60 hours per week and with the approval of the Director of Employment Standards could agree to work more than 60 hours per week.
Daily excess hours agreements entered into before March 1, 2005 continue to be valid agreements but the employer is required to provide the employee (if he or she is not represented by a union) with the Information Sheet About Hours of Work and Overtime Pay prepared by the Director of Employment Standards no later than June 1, 2005.
All excess weekly hours agreements that were entered into under the law as it applied before March 1, 2005 continue to be valid agreements subject to the requirement that the employer provide the employee (if he or she is not represented by a union) with the Information Sheet About Hours of Work & Overtime prepared by the Director of Employment Standards no later than June 1, 2005.
However, as of March 1, 2005 any Director’s approval obtained for an agreement entered into prior to that date ceases to have any effect. As a result, an employer who has an agreement to work more than 60 hours per work week with an employee entered into prior to March 1, 2005 is required to obtain a “new” approval from the Director of Employment Standards.
Most employees, including homeworkers, are entitled to a certain number of hours free from having to work.
An employee must receive at least 11 consecutive hours off work each day. This employment standard cannot be changed by a written agreement between the employee and employer. This 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?).
Employees must receive at least eight hours off work between shifts. This 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 wasn't more than 13 hours.
An employer and employee can also agree in writing that the homeworker will receive less than eight hours off work between shifts.
Employees must receive at least:
This requirement cannot be changed by a written agreement between the employee and the employer.
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 verbal 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.
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 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.
Homeworkers qualify for public holiday entitlements unless they:
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.
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 for every hour worked, so they will be entitled to at least four per cent of the wages they have earned as vacation pay.
Vacation pay is due before an employee's vacation, except when:
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 job hours, wages and deductions. They must give all employees a written wage statement with each pay that shows the full details of the pay period.
The written wage statement must set out:
The employee must be able to keep this information separate from his or her cheque.
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 information was provided to the employee.
Each employee's written record must contain:
Note: It is suggested that homeworkers also keep a record of the hours they work and number of items they complete each day.
Note: An employee is entitled to information about his or her vacation time and pay entitlement once with respect to each completed vacation entitlement year or stub period, on written request to the employer.
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:
If an employee thinks the employer is not complying with the ESA, he or she can call the Employment Standards Information Centre at 416-326-7160 or toll free at 1-800-531-5551 for more information about the ESA and how 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 other options to enforce the ESA, including requesting voluntary compliance, issuing an order to pay wages, an order to reinstate and/or compensate, a notice of contravention, or issuing a ticket or otherwise prosecuting the employer under the Provincial Offences Act.
This document is based on Homeworkers from the Ministry of Labour's Web site(last updated July, 2006).
This Fact Sheet is provided for your information and convenience only. It is not a legal document. For further details, consult Your Rights at Work . For complete information, refer to the Employment Standards Act, 2000 and its regulations.
DISCLAIMER
Information contained in this section is of a general nature only and is not intended to constitute advice for any specific fact situation. For particular questions, the users are invited to contact their lawyer. For additional information, see contact(s) listed below.
Ontario Contact(s):
Employment Standards Information Centre
Ministry of Labour - MOL
Ontario
Telephone: 416-326-7160
Fax: 416-314-8725
Toll-free (information): 1-800-531-5551
E-mail: webes@mol.gov.on.ca
Web site:
http://www.labour.gov.on.ca/english/index.html