Toronto Star

Temp agency tells worker he is not a real employee

Downtown banker deemed ‘independen­t contractor,’ denied employment protection

- SARA MOJTEHEDZA­DEH WORK AND WEALTH REPORTER

George Fawcett, 31, shows up to the same downtown bank office every day on a schedule set by supervisor­s who trained him and direct his daily activities. But according to the temporary employment agency that placed him there, he is not actually an employee — either of the agency or the bank. It’s the subject of a recent complaint filed by Fawcett to the Ministry of Labour after realizing he was not receiving public holiday pay and vacation during his temp agency contract at a Toronto-based Scotiabank. And, he believes, it’s a growing problem in a precarious economy. “I wasn’t sure about the law,” he says. “It wasn’t till I worked on Thanksgivi­ng and someone told me they would just be paying (the) regular hourly rate, not even time-and-a-half that I thought, definitely something’s up here,” he says. When he approached his agency, he was told he wasn’t entitled to the additional wages because he was an independen­t contractor, a category of worker that has no protection under Ontario employment legislatio­n. How a worker is classified has significan­t implicatio­ns. Independen­t contractor­s are responsibl­e for paying their own taxes, and are not covered by the province’s Employment Standards Act (ESA) that governs things such as minimum wage or overtime. That may be an appealing tradeoff for true independen­t contractor­s, who are generally defined as people who are in business for themselves, as they stand to make a profit or loss as a result of their work, control the terms and conditions of their work and have the power to sub-contract out some of the work to others. An independen­t review of the province’s labour laws completed last year notes that businesses that misclassif­y employees as independen­t contractor­s often do so to “avoid the direct financial costs of compliance with the ESA and other legislatio­n.” Fawcett has worked for a Scotiabank compliance team for almost a year through temp agency Finance Profession­als Inc. He says he was trained and is managed by bank staff. He and his colleagues — around 11 of whom are also temps — use bank equipment and have regular schedules that are set by their manager.

When Fawcett tried to seek direct employment from Scotiabank, he says he was told the company was “used” to using the temp agencies it worked with, and that they were worried they may be charged a fee by the agency for hiring him directly.

When he tried switching temp agencies, Fawcett says he was told by Finance Profession­als he could not do so. “We have been notified by Scotiabank that you have approached them to extend your contract for service through an agency other than Finance Profession­als Inc,” says an email to Fawcett from the agency’s director. “I would like to notify you that such an action is a breach of your contract.”

Finance Profession­als did not respond to the Star’s requests for comment. In a statement to the Star, Scotiabank spokespers­on Rick Roth said the company was “committed to providing a rewarding and inclusive environmen­t for our workforce and providing competitiv­e rewards based on the skills and experience of the individual.”

“The bank also works with third-party vendors to fill short-term needs, including project-based assignment­s and to provide coverage during maternity leaves,” he added. “We expect our third-party vendors to follow the law in their dealings with individual­s, just as the bank does. Any informatio­n to the contrary would result in an internal review of the relationsh­ip.”

Deena Ladd of the Torontobas­ed Workers’ Action Centre says situations like Fawcett’s point to the need for temp agencies and their clients to be jointly liable for all workplace rights — including employee misclassif­ication.

“Unless we ensure client companies are fully held responsibl­e for all working conditions, wages and health and safety … it’s very easy for someone like Scotiabank to say, ‘it’s not my problem,’” she said. “It should be their problem.” Fawcett’s complaint is currently being investigat­ed by the Ministry of Labour. Speaking in general terms, spokespers­on Janet Deline said agencies are not allowed to stop temps from getting a job with a client company. Nor can agencies stop clients from directly hiring temp agency workers, although they can charge a fee if the client does so within the first six months of the temp’s placement.

Moreover, as a result of recently-passed legislatio­n, Bill 148, when a dispute arises over whether someone is an employee or an independen­t contractor, the onus now falls on employers to prove they have not misclassif­ied the worker. As a result of legislativ­e changes in 2014, temp agencies and their clients are now jointly liable for workers’ unpaid wages, overtime pay, and public holiday pay.

Last year, a Star investigat­ion revealed how the use of temp agencies limits companies’ liability for accidents on the job, reduces their responsibi­lity for employees’ rights and cuts costs. The number of temp agency offices opening across Ontario has increased by 20 per cent in the past decade and there are now more than 1,700 operating in the GTA alone, according to statistics obtained from the provincial workers’ compensati­on board.

Fawcett says he is generally happy with his work at Scotiabank and his options in the job market — unlike many workers who he feels face barriers in advocating for their rights.

That, he says, is why he wanted to speak up.

Temp agency offices opening in Ontario has increased by 20% in the past decade and there are now more than 1,700 in the GTA alone

 ?? VINCE TALOTTA/TORONTO STAR ?? George Fawcett filed a complaint with the Ministry of Labour when he realized he wasn’t getting holiday or vacation pay.
VINCE TALOTTA/TORONTO STAR George Fawcett filed a complaint with the Ministry of Labour when he realized he wasn’t getting holiday or vacation pay.

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