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Black Friday and Cyber Monday have come and gone and the holiday season is in full swing which, in the employment law context, is about much more than gifts and holiday parties. It is around this time each year when retailers, restaurants, hotels and recreational companies hire part-time workers for a brief bump in consumer activity, while opportunistic individuals search for seasonal employment in order to supplement their income or as a foot-in-the-door to a possible full-time job.
Unfortunately, the "simple" seasonal employment can often raise complex legal issues. Usually, these relate to things like scheduling, statutory holidays, and severance obligations. This year, however, a novel legal issue has made headlines: the "Fashion Santa Controversy."
During the past two holiday seasons, Yorkdale Shopping Centre utilized a wildly successful marketing campaign, with Paul Mason being employed as Fashion Santa. This year, Yorkdale has hired someone else to fill the role and Mr. Mason alleges that he owns the intellectual property relating to the character.
While a part-time job over the holidays is often seen as "casual", the reality is that a legal relationship is being created. Seasonal employees are still employees, entitled to the protections afforded by employment standards legislation, health and safety legislation and common law. It is important that both employers and employees understand their rights and obligations. Otherwise, there can be confusion and questions such as these can arise:
1.) What happens when the holiday season ends; does the seasonal worker still have a job? Are they entitled to termination pay?
2.) Is the individual entitled to a certain number of hours or shifts?
3.) Is the individual expected/required to work on statutory holidays and, if so, how they will be compensated?
Many "default" entitlements at law can be modified by contract. For example, if no end date is specified, a contract of employment is of indefinite duration and can only be terminated with notice or severance. The best way to avoid uncertainty is to have a clearly written agreement. Particularly for part-time, seasonal workers, this does not have to be a lengthy legal document. However, it should clearly address issues such as:
- minimum shifts/hours (or that there is no guarantee);
- length of employment;
- entitlement on termination;
- agreement to work on statutory holidays (if any); and
- any other term that the parties deem material.
Employers operating certain types of business, such as hotels, motels, tourist resorts, restaurants or taverns can require that employees work on public holidays such as Christmas or New Year's Day, unless the employee is refusing to do so for reasons of religious belief, practice or observance. In such circumstances, employers must be mindful of their compensation obligations as set out in applicable legislation. Employers operating in the retail industry should be aware that their employees have the right to refuse to work on public holidays. If employees working in the retail industry agree in advance to work on a public holiday, they can still later decline to work on that day, as long as they give their employer at least 48 hours' notice.
While employers sometimes use seasonal employment to "test out" candidates, they must properly compensate them for their work. In that regard, as of October 1, 2016, minimum wage in Ontario is $11.40/hour, while the student minimum wage is $10.70/hour. Employers cannot bypass minimum wage by informing seasonal workers that they will 'give them a try' and then not pay them for their work.
In short, the Holiday season is a time of opportunity for both employers and employees. In order to avoid complications and ensure that they have enforceable contracts in place, employers would be wise to begin their hiring process well in advance, while employees looking for that extra buck should generally be prepared to work on public holidays, or if not, be up front about their inability to do so. However, as demonstrated by the Fashion Santa controversy, even the most prudent employer cannot always prepare for everything.
Stuart Rudner is the co-founder of Rudner MacDonald LLP. David Master is an associate at the firm.