For many employers the beginning of the crisp autumn air is inextricably linked with the start of the new school year, and with it the return of their student employees. It is important for employers to know that while the Employment Standards Act, 2000 applies to youth and adults alike, there are some differences in the law of employment with regards to youth workers.
Regulations under the Occupational Health and Safety Act specify minimum age requirements for certain industries. For example, O Reg 851 requires employees to be a minimum of 14 years of age for a workplace other than a factory; 14 years of age for industrial establishments (except those establishments to which the public generally has access, or those used for sales purposes); and 15 years of age for a factory (other than a logging operation). O Reg 213/91 requires workers to be at least 16 years of age to work for construction operations. There are other age-related requirements as well as further limitations and exceptions in the regulations which are not described in this note.
Under the Education Act, students are obliged to attend school, and employers are therefore prohibited from employing students during regular school hours. However under O Reg 374/10, students at least 14 years of age may be approved to attend a supervised alternative learning program during regular school hours, including full or part-time employment.
Young employees are also treated different with respect to the minimum wage. According to the Employment Standards Act, 2000 the current minimum wage for a student under 18 years of age, if the student’s weekly hours are not in excess of 28 hours or if the student is employed during a school holiday, is $10.30 per hour. This is in contrast to the current general minimum wage rate of $11.40 per hour.
Finally, employers should be careful about having youth work as unpaid “interns” in their organizations. Generally speaking, if an “intern” is performing work for a company/organization or another person, and he/she is not in business for him/herself, the intern would be considered to be an employee, and therefore entitled to ESA rights such as the minimum wage. There are some exceptions, but they are very limited. Employers should consult with the Ministry of Labour and/or an employment lawyer before taking on unpaid interns.
Written with the assistance of Melanie Simon, articling.