It’s 2016!: Equal Pay for Women

Thanks in part to famous women like Jennifer Lawrence and Emma Watson the issue of equal pay for women has gained renewed traction. It is 2016, after all!

Of course, women and their allies have been pushing for equal pay for equal work for a long time. Unfortunately, many women continue make less than their male counterparts whether due to blatant discrimination or because old stereotypes and expectations continue to have an impact on women at work.

What are your rights?

If you think you are being paid less because you’re a woman or because you do a job that has been traditionally done by a woman, you may have recourse to the Human Rights Tribunal, the Ministry of Labour, the Pay Equity Commission – or even to the courts! While the law prohibits discrimination on the basis of sex in Ontario, somewhat different rules apply depending on where you work.

The Ontario Human Rights Code makes it illegal for an employer to discriminate against an employee or job candidate on the basis of sex. In other words, it’s against the law for some one to refuse to hire you because you are a woman or to pay you less because you are a woman.

Similarly, the Ontario Employment Standards Act provides for “equal pay for equal work”. An employer can’t pay a woman less than a man who is performing work that is substantially the same in terms of skills, efforts and responsibility. However, even this rule is subject to conditions. It only applies if the man and the woman are working under “similar working conditions” and in the same “establishment”. Of course, a man can still be paid more than a woman if he has more seniority, employees are paid on the basis of an objective measurement of their merit, pay is linked to production or for some other non-sex-based reason.

Another piece of legislation, the Pay Equity Act, remedies some of the unfairness that would be caused if women could only turn to the Human Rights Tribunal or the equal pay rule for help. The Pay Equity Act is based on the principal of “equal pay for work of equal value”, which is a broader concept than “equal pay for equal work”. This broader approach lets the law take into account the fact that certain work has been traditionally performed by women and has been historically underpaid, but has the same value as certain other work traditionally performed by men. The Pay Equity compares “female class jobs” (think: nurses, social workers) with “male class jobs” (think: engineers, technicians) to determine which jobs are of “equal value” and should be equally compensated. Unfortunately, while the Pay Equity Act probably helps you if you are a public sector employee in Ontario, it does not apply to smaller, private sector employers. It also doesn’t apply to private sector workplaces where everyone works in male job classes or female job classes. This means that if your employer only employs nurses, pay equity does not apply because there is no male job class at your workplace that your wages could be compared to.

In addition to legislation, your employment contract, collective agreement or employer’s rules and policies may provide you with other rights or access to programs designed to address the gender pay gap.

There are important exceptions to the rules against sex discrimination, though. Special interest organizations may discriminate on the basis of sex –or other grounds- in hiring if sex is a real requirement based on the nature of the work. Individuals hiring some one to provide them or a family member with personal care can also refuse to hire some one on the basis of their sex. At the same time, “affirmative action” is legal under the Human Rights Code: this means that an employer can treat employees differently on the basis of sex if they are implementing a special program designed to help disadvantaged persons or groups achieve equality.

This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.

COMMENTING POLICY: Comments may be subject to moderation. Commenters should refrain from using offensive or discriminatory language and from disclosing any personal or potentially privileged information.

Am I Really an Independent Contractor?

An increasing number of businesses (think: Uber!) use “independent contractors” instead of “employees”, casting off the responsibility to deduct taxes and contribute to programs like Employment Insurance or the Canada Pension Plan.

But what effect does working as an independent contractor have on your rights as a worker? Does the fact that you are called an independent contractor actually make you one?

AM I REALLY A CONTRACTOR?

The question of whether you are an employee or a contractor effects your rights at work, especially if you are dismissed. Generally, employees who are fired without cause are entitled to notice or pay in lieu of notice but contractors are not. Employees, unlike contractors, can unionize their workplace.

In cases where a company claims that some one is a contractor and not an employee, Ontario courts consider factors including:

-Do you work exclusively for one company or boss?

-How much does the company or your boss control how you do your work?

-Do you own the tools you use to do your job?

-Do you share in the business risk or profit?

-Whose business is it?

While some people are clearly employees or clearly contractors, many workers fall in between these two categories.

In Ontario, both the common law and the Ontario Labour Relations Act recognize a middle category between independent contractors and employees: the dependent contractor. Dependent contractors, like employees, may be entitled to notice if their employer dismisses them without cause and may be able to unionize.

KEENAN V CANAC KITCHENS – DEPENDENT CONTRACTORS

A recent Ontario Court of Appeal decision confirmed that courts will look at what your work is really like rather than focusing on the title a company gives you in a contract.

In this case, husband and wife Lawrence and Marilyn Keenan had worked for a company called Canac Kitchens Ltd for more than 30 years when their employer closed its door and dismissed them without any notice or compensation. Roughly 20 years before their dismissal the Keenans had signed an agreement that said they were working as full-time “sub-contractors”, not as employees. In spite of this written agreement, their work remained unchanged.

At trial, the Judge found that the Keenans were “dependent contractors” and ordered their former employer to pay them 26 months’ notice. The Court of Appeal upheld this decision, even though the Keenans’ work for another company in the last 2 years of their employment made them somewhat less dependent on Canac.

This flexible, realistic approach to the question of whether a worker is a contractor or an employee (or something in between) is good news for Ontario workers who may have been mislabelled by their employer or are unsure about whether they really are a contractor.

DECISIONS DISCUSSED:

Belton v. Liberty Insurance Co. of Canada, 2004 CanLII 6668 (ON CA)

McKee v. Reid’s Heritage Homes Ltd., 2009 ONCA 916 (CanLII)

Keenan v. Canac Kitchens Ltd., 2016 ONCA 79 (CanLII)

Keenan v. Canac Kitchens, 2015 ONSC 1055 (CanLII)

This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.

COMMENTING POLICY: Comments may be subject to moderation. Commenters should refrain from using offensive or discriminatory language and from disclosing any personal or potentially privileged information.