If you're considering hiring a caregiver for your child or children, who will work out of your house then there are a few things to consider. Before hiring a caregiver, you should register with the Workplace Safety and Insurance Board and you should speak to your insurance company to determine if you require additional insurance coverage.
The Employment Standards Act and the Regulations define "domestic workers" as follows:
"a person who is employed by a householder to perform services in the household or to provide care, supervision or personal assistance to children, senior or disabled members of the household, but does not include a sitter who provides care, supervision or personal assistance to children on an occasional, short-term basis."
A live-in or live-out caregiver would fall within the definition of a "domestic worker". Domestic workers have the same rights as other employees in Ontario workplaces under the ESA. Below are some of the requirements under the ESA which are applicable to domestic workers:
Minimum Wage
Domestic workers must be paid at least the minimum wage rate which, in Ontario is currently $8 per hour however, it will increase to $8.75 per hour on March 31, 2008 and to $9.50 per hour on March 31, 2009.
Employer Obligations
Before a domestic worker begins working, they must be provided with written particulars of their employment including the regular hours of work, the starting and finishing times and the hourly rate of pay. In addition, they must be provided with a written wage statement setting out: 1) the pay period for which the wages are being paid; 2) the wage rate, if there is one; 3) the gross amount of wages and how the gross wages were calculated (unless this is already specified in an employment contract); 4) the amount and purpose of each deduction; 5) any amounts that were deemed to have been paid as wages to the employee as room or board or both; and 6) the net amount of wages.
Room and Board
If the domestic worker is provided with room and board then the employer must pay the employee (before deductions for CPP, EI or income tax) the difference between the minimum wage for all hours worked and the amount deemed to have been paid for room and/or board. These amounts are calculated as follows:
Room: weekly
private: $31.70
non-private: $0
Meals
each meal: $2.55
weekly maximum: $53.55
Room and meals (board): weekly
private room: $85.25
non-private: $53.55
Overtime
Domestic workers are entitled to be paid overtime for any time worked after 44 hours in a work week. Overtime pay is at least 1.5 times the employee's regular rate of pay. However, the domestic worker and the employer can agree in writing that the domestic worker will receive paid time off work instead of overtime pay. In that case, the domestic worker must be give at least 1.5 hours of paid time off work for each hour of overtime worked.
Maximum Hours of Work
The maximum number of hours that domestic workers can be required to work is eight hours in a day or the number of hours in an employer's established regular work day that is more than eight hours and forty-eight hours a week. These hours of work maximums can be exceeded by written agreement between the employee and the employer. However, an agreement to work forty-eight hours a week is not valid unless prior to making the agreement the employer gives the employee the Information Sheet About Hours of Work and Overtime Pay prepared by the Ministry of Labour. The employer must also obtain an approval from the Director of Employment Standards before an employee may work more than 48 hours in a work week.
Domestic employees must receive at least 11 consecutive hours off work each day. In addition, they are entitled to a 30 minute eating period free from work after five consecutive hours of work. These meal breaks may be paid or unpaid but in either case, the employee must be free from work.
Public Holidays
Domestic workers are entitled to take public holidays off work. If they agree to work on the holiday, the employer must pay the domestic worker wages at his or her regular rate for the hours worked and give the employee a substitute day off with public holiday pay. Alternatively, the employee and employee may agree in writing that the employee will receive public holiday pay for the day plus premium pay of at least 1.5 times his or her regular rate for each hour worked on the public holiday. There are also certain conditions that must be met before a domestic worker will qualify for public holiday entitlements.
Vacation
Domestic workers are entitled to a minimum of two weeks of vacation with pay after each 12 months of employment, starting from the date they are hired. Vacation pay is calculated as at least four per cent of the employee's gross wages (excluding vacation pay and before any deductions, including room and board) earned in the period for which the vacation is being given. Employees earn vacation pay as they earn wages.
These are just some of the requirements under the ESA. If you are contemplating hiring a caregiver, you should consult a lawyer who can advise you of any additional requirements and can assist you in drafting an employment contract which will set out the terms of employment and ensure compliance with employment legislation.
By Heather Cooper
To contact Heather, e-mail hcooper@perlaw.ca or call (613) 566-2852.
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