Canadian HR Reporter

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Visit www.carswell.com or call 1.800.387.5164 for a 30-day, no risk evaluation Motel kicks housekeeper out on street, must pay $10,000 in lost wages, damages Claimed worker was independent contractor who didn't require minimum wage An Ontario employer must pay a former employee more than $10,000 in lost wages and damages for pain and suffering after forcing her to work for below minimum wage — and then firing her when she asked to be paid fairly, the Ontario Labour Relations Board has ruled. Elitsa Teneva was hired on Jan. 25, 2014, to work as a housekeeper cleaning rooms at the Cloverleaf Motel in Oshawa, Ont. At the time, Teneva was homeless and receiving social assistance, so she had a verbal agreement with David McKeown, the manager, to deduct $250 per week from the money she earned for a room at the motel. e motel paid Teneva on a per- room basis — $4 for a single room and $6 for a double room. She would clean, vacuum, change the beddings and change the towels in each room, which was expected to take about 20 minutes. When she started working at the Cloverleaf, Teneva signed a motel registration card that in- dicated she needed a room in ex- change for work. McKeown also provided her with a handwritten letter at her request for Ontario Works, which stated she worked "a few hours a week" and paid $250 per week for a room. McKeown indicated Tenva could set her own schedule and leave the motel to go to job inter- views, but he could call her room at any time between 9 a.m. and 11 p.m. to have her clean motel rooms on demand or deliver sup- plies to rooms. When he called, it was expected she would answer and respond promptly. In the first two months of 2014, business at the Cloverleaf was slow, so McKeown assigned Te- neva other duties such as laundry, garbage removal and shoveling snow, for which she was paid per task. Teneva was also paid $30 to paint a room. After three weeks of working at the Cloverleaf, Teneva asked McKeown to provide another letter to Ontario Works showing her hours of work and wages as she wasn't making enough money for food or medication. Instead, McKeown asked her to transfer to another motel owned by the Cloverleaf 's owner, the Idlewood Inn in Scarborough, Ont. At the time of the transfer, Te- nenva owed the Cloverleaf $60 for her room. is was transferred to the Idlewood, where she also stayed in a room. Teneva asked the owner for a letter with her rate of pay and hours of work, but the owner re- fused because it would put her in a "legal status." Without the letter, Teneva's social assistance cheques stopped coming. Teneva also signed a document that stated she worked as an in- dependent contractor, provided her own gloves and the motel wouldn't make any deductions from her pay. She was paid $4 to clean a single room and $5 to clean a double room, and agreed that any time spent in the rooms beyond 30 minutes each would be considered personal time. As at the Cloverleaf, Teneva was expected to be ready to clean a room immediately after a guest checked out. She was also expect- ed to deliver towels and toiletries to rooms upon request, a job for which she wasn't paid. Teneva often didn't clean rooms as fast as the managers liked and was told to hurry up. Sometimes, one of the managers asked her to clean a room again if it wasn't to her satisfaction — the manager was a self-described "clean freak." Teneva was asked to paint rooms as well, but since the rooms were larger than at the Cloverleaf, she was paid $50 per room. Teneva ended up working long hours, which didn't allow her to go to job interviews. On April 27, 2014, her feet started bleeding while she was cleaning a room, so she went back to her room to take care of them. e manager on duty went to her room, un- locked the door with his master key and told her to finish cleaning the guest rooms. Teneva told the manager she had "had it" and quit. Later that day, the hotel's owner asked Teneva to return to work, but Teneva said she was treated rudely by management and felt she was discriminated against because she was given all the double rooms to clean. She also complained the hours she worked were too long to attend job inter- views. However, Teneva returned to work and was able to take time off for a few interviews. In mid-May, Teneva told the manager on duty that she wanted to be paid minimum wage. e owner then contacted her on May 19 and told her it wasn't pos- sible to pay her minimum wage, her employment was terminated, and she had 90 minutes to move out of the hotel. An employment standards of- ficer denied Teneva's claim for minimum wage, finding she was an independent contractor and not covered by the Ontario Em- ployment Standards Act, 2000. Teneva appealed to the province's labour relations board. e board found Teneva was "not engaged in business on her own account" and both the Clo- verleaf and the Idlewood "exer- cised substantial control over Ms. Teneva's schedule." ough man- agement said she could make her own schedule, the reality was she was expected to answer manage- ment's call to work at any time. In addition, Teneva didn't have any cleaning work other than that she performed at the motels. She was also unable to take time to go to job interviews until she threat- ened to quit, said the board. e board also found Teneva had limited ability to profit from cleaning rooms, as management decided what type of rooms she was to clean. It also provided her with all the cleaning prod- ucts and equipment she needed. Based on these factors, the board found Teneva was an employee of the Cloverleaf Motel and Idle- wood Inn. Since Teneva was an employee, the Cloverleaf and Idlewood were required to pay her minimum wage for the hours she worked. e board estimated she cleaned an average of eight rooms a day, which took about five hours. e other tasks added another hour, so she worked six hours a day, seven days a week — or 42 hours per week, said the board. It also found Teneva was termi- nated for asking to be paid mini- mum wage, which was her right under the act. is amounted to a reprisal that left her without em- ployment or shelter, since she was also kicked out of her room. e owner of the two motels was ordered to pay Teneva wages for the three months it took her to find another job — $5,372.64 — and $5,000 for pain and suffering caused by the harsh manner of her dismissal. See Teneva v. 946900 Ontario Ltd., 2016 CarswellOnt 1003 (Ont. Lab. Rel. Bd.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. revamp how it's communicated to the workforce, how it's deter- mined, he said. "But what employers should be doing is, number one, reveal- ing how total compensation is determined and then making the appropriate changes for their workforce, and then clearly com- municating that not only for their current employees but also for prospective talent who (are) re- searching the company as a place to work," he said. "If (employers) don't do this, they will be at a re- cruiting disadvantage." Closing the gap So, what are some potential solu- tions? Government legislation is favoured by 38 per cent of Ca- nadian respondents, followed by 32 per cent who favour corporate policy solutions. Twenty-seven per cent believe transparency will help close the gap while 26 per cent like clearer communication, found Glassdoor. Whatever the solution, it has to come from the top, according to Turan. "is, to me, all starts with gov- ernance," she said. "ere are some basic elements of governance, the first of which is legislation or compliance. For any board or company, they need to look at that and say, 'OK, there is legislation out there.'" Organizations also need to address the underlying causes behind employee pay equity in order to truly affect change, said Donovan. "There's a lot of unintended biases throughout the hiring pro- cess. Study over study over study continuously shows that you can have the exact same candidate, whether it's on a resumé or appli- cation, and if his name's John, he looks perfect. But if the name goes to Jane or in one of the studies it switched to Jennifer, and suddenly (it's) not so impressive. And then you change it to an ethnic-sound- ing name… and (they are) 70 per cent less likely to get an interview," she said. "We are people with all kinds of weird biases and, unfortunately, they continually hurt women and people of colour. "ere's no industry, there's no country, there's no age, there's no years of experience, there's no level of job without a gender pay gap." Address causes PAY GAP < pg. 2

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