Overtime Exceptions Part 4 Industries with Special Rules - Agriculture, Household and Landscaping, Government Employees, and Students

In our recent blog post, Overtime Entitlements in Ontario, we discussed employees' basic entitlements to overtime as outlined in the Ontario Employment Standards Act ("ESA"). As we explained in our post, there are numerous exceptions to the general overtime rules.

A variety of industries in Ontario have special rules relating to overtime entitlements. In this blog post we explore the special rules applicable to the following industries: agriculture, household, landscaping and residential building services, government employees, and students.

To learn about other industry exceptions, check out Part 3 of this series where we discussed the exceptions applicable to the following industries: healthcare, hospitality, construction, and transportation, amongst others.


(1) Agriculture

A wide variety of special employment rules apply to employees within the agricultural industry, including significant exceptions to the overtime pay requirements. For example, the following employees are not entitled to overtime pay under the ESA:

  • Farm employees
  • Fishers
  • Flower growers
  • Employees working in the growing, transporting, or laying of sod
  • Tree and shrub growers
  • Hunting and fishing guides
  • Wilderness guides
  • Fur-bearing mammal keepers

Employees who are "seasonal" (i.e. work less than 16 weeks a year) and work in the canning, processing, packing or distribution of fresh fruit or vegetables are entitled to overtime pay for each hour worked over 50 hours in a work week.


(2) Household, Landscaping and Residential Building Services

Homemakers:

Homemakers are employees who provide homemaking or personal support services in someone's home, but the employer is not the owner or renter of the home.

Homemakers are entitled to be paid minimum wage for up to 12 hours per day, and no more. If this is how the homemaker is paid, they are not entitled to overtime pay.

However, if a homemaker is paid for more than 12 hours a day, either at the minimum wage rate or higher, then the regular overtime rules apply. This means that the homemaker would be entitled to overtime pay for hours worked in excess of 44 hours per week.

Landscape Gardeners:

Employees are considered landscape gardeners if they work to maintain or change land and gardens for aesthetic purposes. This includes:

  • Raking, watering, and weeding
  • Planting, trimming, maintaining, or moving plants and trees
  • Preparing lands for planting
  • Installing rock gardens, ponds, and planters
  • Park gardening
  • Keeping golf course greens

Notably, it does not include:

  • Building retaining walls for structural purposes
  • Installing light systems
  • Spraying roads and industrial sites for weeds

Landscape gardeners are not entitled to overtime pay.

Residential Building Superintendents, Janitors and Caretakers:

Superintendents, janitors, and caretakers of a residential building are not entitled to overtime pay if they live in the building.


(3) Government Employees

Employees are not entitled to overtime pay if they are employed by either:

  • The Ontario government; or
  • Ontario government agencies or authorities, boards, commissions, or corporations all of whose members are appointed by the Ontario government.

In contrast, there are no special overtime rules applicable to employees who work for a municipality.

Please note that employees of the federal government are not covered by the ESA. For further information on federal employees' rights and entitlements, please speak to an experienced employment lawyer.


(4) Student Employees

A student is defined as a person who is either:

  • Working full or part-time while in full-time attendance at a primary, secondary, or post-secondary institution; or
  • Working during a holiday period but has the intention of returning to full-time education at the end of that holiday period.

Student employees are not entitled to overtime pay if they work:

  • At a children's camp;
  • Providing instruction to or supervising children; or
  • In a recreational program run by a charity.


Key Takeaways:

The overtime rules in Ontario contain many exceptions and exemptions. As we have outlined in Parts 1, 2 and 3 of this series, employees may be subject to special overtime rules because of the nature of their duties, the role they occupy, or the industry they work in. In every case, employees and employers should consult with an experienced employment lawyer to determine whether their occupation is covered by special overtime rules. Lee Workplace Law would be happy to help.