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.
The 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 indicated she needed a room in exchange 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 interviews, 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 supplies 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 Teneva 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, Tenenva owed the Cloverleaf $60 for her room. This 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 refused 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 independent 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 expected 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. The manager on duty went to her room, unlocked 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 interviews. 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. The owner then contacted her on May 19 and told her it wasn’t possible to pay her minimum wage, her employment was terminated, and she had 90 minutes to move out of the hotel.
An employment standards officer denied Teneva’s claim for minimum wage, finding she was an independent contractor and not covered by the Ontario Employment Standards Act, 2000. Teneva appealed to the province’s labour relations board.
The board found Teneva was “not engaged in business on her own account” and both the Cloverleaf and the Idlewood “exercised substantial control over Ms. Teneva’s schedule.” Though management said she could make her own schedule, the reality was she was expected to answer management’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 threatened to quit, said the board.
The 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 products and equipment she needed. Based on these factors, the board found Teneva was an employee of the Cloverleaf Motel and Idlewood Inn.
Since Teneva was an employee, the Cloverleaf and Idlewood were required to pay her minimum wage for the hours she worked. The board estimated she cleaned an average of eight rooms a day, which took about five hours. The 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 terminated for asking to be paid minimum wage, which was her right under the act. This amounted to a reprisal that left her without employment or shelter, since she was also kicked out of her room.
The 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 Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.