Dispute with employer: 4% Vacation Pay in Ontario

[Tofu Drift Shinji]

I am a university student with a permanent part time job as an editor/technical writer at a small software firm. I have been here for a year and a half. For the first year, I worked at least once a week and every business day in the summer. After the first year of work, I took one semester off because I had classes every day, and that did not allow me to go into the office to work. I am paid $12/hr. I am generally able to take any days off I want as long as I talk to my bosses.

Everyone I talk to says I am eligible for 4% (of my first year's wages) vacation pay, which is a few hundred bucks, and as a student, that would definitely help pay the bills.

When I approached my boss, he said I was a contract-type worker and was not entitled to vacation pay. I looked up the Vacation Pay laws for Ontario, and I may still be a hair rusty with them, which is why I hope I can get some responses from people that know it better than I do. Even so, I don't think the labour laws excluded contract workers, student workers or permanent part time workers from vacay pay.

I am not sure how I qualify as a contract worker if I did not sign for any contract terms regarding length or otherwise. I did however sign what my parents tell me is a Letter of Intent which they faxed to me saying that I do intend to take their job. I still have a copy of this document, and nowhere on it does it say I am a contract worker or that I am ineligible for vacation pay.

The most relevent part of the letter for my argument reads:

"The hourly rate for this position is $12/hour. The number of hours is flexible – we hope to average anywhere from 15 up to 35 hours per week, depending on work and availability. These hours can be flexible enough to wrap around other commitments."

Any thoughts before I talk to the Labour Ministry?

[valdez12]

The question I have is are you on payroll? ie: are they doing source deductions from your salary hence are an employee or are you a "contractor" where are you paid without source deductions your simple labour rate: ie: $12/hour x 30 hours worked = $360 sort of thing?

In the later case, although I'm not in Ontario, I'd venture to say it's safe to say that you are not entitled to vacation pay (nor EI either) as your employer has not classified you as an employee. He/she has been saving paying you 4% and the employer's share of CPP &IE remittance on your wage. (hence why for them it's cheaper and simpler to have you on "contract" as they are saving a bit and there's less paperwork for them.. but not for you are you do not get 4% nor EI if layed off.)

Now the question is "are you truly a contractor?" from CRA (revenue canada) point of view? Do you set your hours? do you encur expenses or any risk in doing this contract work? etc... That's another question altogether and has nothing to do with ontario labour laws but is a federal thing with respects to the employer's EI and CPP contributions and source deductions.

[Tofu Drift Shinji]

I am on their payroll. My EI/CPP/Fed. Tax is deducted straight from my direct deposit before I can get to it.

Sorry, I should have added this to my original post. Thanks for asking and clearing it up.

With concern to the contractor question, I do have the ability to set which days I come in, but then I am expected to come in on those days. Even so, I do believe I have read that contract workers are not excluded from the 4% Vacation Pay. Could be wrong, will look it up again.

[Shifty]

Contract makes no difference, if you are a payrolled employee, they must pay you a minimum of 4% of your pay, or give you the equivalent in paid time off. Your boss is wrong.

Only case where you wouldn't be entitled to this is if you were a subcontractor, not an employee of the company, which isn't the case here. If they are taking source deductions, you are an employee, period.

edited to add: there ARE cases where vacation pay doesn't apply for employees, such as with farm workers, but as an office worker, I know of no such exemption.

[Tofu Drift Shinji]

Thanks for the info, Shifty. Now I have a better idea of how to go about talking to my local Labour Ministry Office about this to ask them about it should be resolved.

[Shifty]

I wouldn't go to the Ministry until you've exhausted all your options at your actual workplace, unless you don't care about the job any more. The Ministry will definitely intervene and force them to pay you the money, but it will likely not make you any friends at your job!

[IronMac]

Talk to the Ministry in order to clarify whether or not you are a contract worker. It sounds like you're more of an employee than a contract worker but what do I know? I don't work for the Ministry.

[Tofu Drift Shinji]

Tofu Drift Shinji, have you been getting paid for statutory holidays?

No, but as a permanent P/T worker, I don't imagine I would be. However, I'm under the impression that P/T workers still get the 4% vacation pay.


I wouldn't go to the Ministry until you've exhausted all your options at your actual workplace, unless you don't care about the job any more. The Ministry will definitely intervene and force them to pay you the money, but it will likely not make you any friends at your job!

I am only planning to talk to the Ministry to get guidance on whether I am in the right and what kind of proper documentation to bring to my boss to make my claim. Only if they do not agree to resolve this situation will I have the Ministry involved directly with my company.

It's just that I don't think I should let it slide any longer. For a while I thought about just forgoing this for the sake of keeping this job, but since this is a labour law, and $3-400 bucks is at stake, which is a sizable amount for a university student, I figured I should pursue it if I could find some time to. And what better time to than the beginning of the semester? (:

Again, thanks for all the replies, and I'm looking forward to any additional comments, remarks and ideas!

[Rehan]

You're definitely entitled to vacation pay. If you haven't come across these pages already, see http://www.worksmartontario.gov.on.ca/scripts/default.asp?contentID=1-3-4 and http://www.labour.gov.on.ca/english/es/factsheets/fs_vacation.html

The second link says:
"Full-time, part-time, temporary, seasonal, contract workers and student workers are eligible."

So your boss' excuse that you're in a contract-type position means nothing.

[sleepyguy]

Probably best to talk it out with your boss first before going to the labour board... mind you he may take it the wrong way. Good luck!

[Rehan]

I agree, bring it up further with your boss, he may take it the wrong way, but probably not as wrong as you skipping him and going directly to the labour board.

Print off the valid information and present it to him for his examining. Maybe he's not intentionally ripping you off, he just isn't aware of the regulations, much the same as you aren't (until now).I think the OP already agreed with that approach... :)


I am only planning to talk to the Ministry to get guidance on whether I am in the right and what kind of proper documentation to bring to my boss to make my claim. Only if they do not agree to resolve this situation will I have the Ministry involved directly with my company.

[bensa138]

If you plan on going through employment standards be prepared to wait about 6 months to have your case heard/cleared.

When I submitted my appeal it took about 5+ months to get it cleared up ...

For me it was a long time but worth the wait.

:D

[nano]

wait a minute



you can get vacation pay when your contract?

[sw1ft]

wait a minute

you can get vacation pay when your contract?I don't think so. I work at a helpdesk at Seneca College and do not receive VAC PAY because they classify my position as a contract job.

Contract = no VAC PAY

[Shifty]

Swift - then you were either classified as a subcontractor, or they were not paying you what you were due. Contract employees get vacation pay, as has been said above, and as per the link.

[Tofu Drift Shinji]

Woohoooooo... my 4% is coming in the pay period after next.

Thanks for all the help, everyone!

[Bachelor]

So what happened?

[Tofu Drift Shinji]

My guess is they never consulted the company accountant when they first decided that I'm not supposed to get it. I showed the Labour Ministry's Vacation Pay Factsheet to him, he said he would forward it to the accountant, and it got all sorted out that way.

Henceforth, I get 4% of the gross per pay period, so I don't have to wait till the end of the year for a lump sum <:

[Shifty]

Where's our cut of that? :-0

[Rehan]

Where's our cut of that? :-0What do you mean "our cut"?? I'm the one that posted the link to what he showed the boss.

Tofu, send me a PM with your address and I'll mail you an invoice.

:lol:

It's good to see it worked out.