This temp agency worker shows up at the same office every day. But his agency says he's not a real employee

May 11, 2018
Article Source
Toronto Star

George Fawcett, 31, shows up to the same downtown bank office every day on a schedule set by supervisors who trained him and direct his daily activities. But according to the temporary employment agency that placed him there, he is not actually an employee -- either of the agency or the bank.

It's the subject of a recent complaint filed by Fawcett to the Ministry of Labour after realizing he was not receiving public holiday pay and vacation during his temp agency contract at a Toronto-based Scotiabank. And, he believes, it's a growing problem in a precarious economy.

"I wasn't sure about the law," he says. "It wasn't till I worked on Thanksgiving and someone told me they would just be paying (the) regular hourly rate, not even time-and-a-half that I thought, definitely something's up here."

When he approached his agency, he was told he wasn't entitled to the additional wages because he was an independent contractor, a category of worker that has no protection under Ontario employment legislation.

How a worker is classified has significant implications. Independent contractors are responsible for paying their own taxes, and are not covered by the province's Employment Standards Act that governs things like minimum wage or overtime.

That may be an appealing tradeoff for true independent contractors who are generally defined as people who are in business for themselves, stand to make a profit or loss as a result of their work, control the terms and conditions of their work, and have the power to sub-contract out some of the work to others.

An independent review of the province's labour laws completed last year notes that businesses that misclassify employees as independent contractors often do so to "avoid the direct financial costs of compliance with the ESA and other legislation."

"The experience of the Ministry of Labour in enforcement and significant anecdotal evidence suggests that a portion of ... 'own-account self-employed' workers are misclassified as they are actually employees but are treated by their employers as independent contractors," the report says.

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