February 21, 2024

Ontario’s Employment Standards Act Exempts Certain Business and Information Technology Consultants, if Conditions Are Met | Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

As of January 1, 2023, certain “business consultants” and “information know-how consultants” in Ontario have been exempt from the Employment Benchmarks Act, 2000 (ESA). These exemptions are element of the numerous amendments designed to the ESA subsequent the enactment of Bill 88, Performing for Employees Act, 2022.

Below the ESA, a “business consultant” is “an specific who supplies suggestions or providers to a company or business in regard of its effectiveness, which includes guidance or companies in respect of the operations, profitability, management, construction, processes, funds, accounting, procurements, human means, environmental impacts, advertising and marketing, possibility administration, compliance or tactic of the company or firm.”

An “information engineering consultant” is “an person who presents tips or expert services to a company or corporation in respect of its info technologies techniques, which include assistance about or solutions in regard of planning, developing, analyzing, documenting, configuring, establishing, tests and installing the company or organization’s data technological know-how devices.”

A company advisor or facts technologies guide will be excluded from the ESA if they fulfill all four of the problems under:

  1. The expert delivers solutions by means of both:
    1. a company inside of the ability of a director or shareholder who is a celebration to a unanimous shareholder agreement or
    2. a sole proprietorship, through which the specialist supplies services making use of a small business name registered beneath the Business enterprise Names Act.
  2. The consultant’s services are offered by means of a prepared agreement that sets out the quantity of pay back owed to the advisor, and the timing of these types of payment. The payment alone “must be equivalent to or higher than $60 for each hour, excluding bonuses, commissions, charges and travelling allowances and added benefits, or this sort of other quantity as might be approved, and ought to be expressed as an hourly price.”
  3. The advisor is paid out in accordance with the conditions contained in a composed settlement.
  4. The expert fulfills “[s]uch other specifications as may perhaps be recommended.”

As of January 1, 2023, folks who may well have previously been topic to the provisions of the ESA may now be exempt if they meet up with the definition of “business consultant” or “information technology marketing consultant,” as well as all 4 specifications approved in the ESA.

Ontario companies may want to evaluation the definitions earlier mentioned to ascertain no matter whether people today at the moment dealt with as topic to the ESA may be exempt. Exempt individuals are not subject to the ESA’s least standards and protections with regard to several hours of do the job, overtime, leaves of absence, and termination entitlements, among other provisions.