TL;DR:

• The Employment Standards Act defines protections for workers
• There are a series of exemptions to the ESA (naming types of workers not covered by parts of the ESA)
• Thanks to the huge number of exemptions, most workers are not covered by the ESA’s protections and therefore have no recourse when they are mistreated
• IT workers are especially targeted by these exemptions, leading to huge industry growth
• This is the strategy of the economic right going forward (have very strong laws to brag about, but enough exemptions that they don’t apply to anybody, or aren’t very strong in practice)

Imagine you are a landscaper. During the pandemic, it’s the only reliable source of income you can get. You must work outside, in the heat, for long days. According to the job description, you are paid hourly, and that means the boss is always on you to get the job done fast. You had a big job scheduled on Canada Day, and you knew it was going to be almost 40 degrees with the humidity. You just wanted a day off. You tell the boss two days in advance that you want Canada Day off, but he says no. You don’t have the right to refuse to work on a public holiday , you are exempt . You worked 55 hours that week. You feel like you are entitled to some overtime pay. Nope, you are exempt . You only get overtime if the company was generous enough to put it in the contract (they weren’t).

What’s going on here? Essentially, the government is caught between appearing to stand up for worker’s rights on the one hand and being “open for business” on the other. To attract corporations, the government needs to make a compelling case that the labor laws are no more burdensome than they are anywhere else. But if the chief labor law defining the rights of workers was rolled back, it would be a political massacre for the leadership, and they would forever be catapulted into the history books. How can they resolve the contradiction? If there was a way to make it so that the rules just didn’t apply to a company that wanted to set up shop, then the laws could simultaneously be on the books, but be of no use to anyone. Enter the Exemptions .

You can already see the strategy: Pass landmark bipartisan labor law, with the help of unions, grassroots organizing, high-profile court cases and heartstrings-tugging media coverage. Shortly thereafter, add an exemption so that local businesses don’t need to be bothered with implementing the rules. The employees get to live in a province that nominally protects their rights, while simultaneously making sure those rights don’t apply to them.

The exemptions are most egregious in the case of information technology professionals , a term vague enough to include almost anyone who works on a computer for their job. Anytime a hot new tech startup decides to set up shop in Toronto, they are probably doing so because those employees are exempt from the most expensive part of the ESA, Part VIII, which governs overtime pay. Every horror story you have heard about someone in IT working insane hours at the end of a project (often called “crunch”) has at its root, the exemptions to blame. Those workers are simply not entitled to overtime pay. Every technology company in Ontario knows this, and none of them will make any promises about overtime, because they know who has power in this situation, and who does not. All the big notorious companies with a significant presence in Canada, whose names you have grown to mistrust over the years, benefit (read: profit) from these exemptions.

The exemptions are the simple, cynical reason that Canada has been referred to as a “tech utopia ”, and “outstanding opportunity for job seekers ”, “a significant pool of untapped talent ”, etc. Companies are attracted because they know that they don’t have to pay overtime, and they can foster a culture of overwork without legal consequences.

“But IT workers get paid a lot more than the rest of us!” I can hear you say, and you are correct, but only by degrees. The standard for overtime pay in Ontario begins at 44 hours and must be at least 1.5 times the base salary . IT workers generally earn less than they would be if they were properly compensated for overtime pay.

We can expect to see more of this in the future: growth is targeted at industries that already have exemptions, and exemptions are gradually added for workers in new industries. Soon, we end up in a situation where most workers are not covered by the most important parts of the Employment Standards Act at all, and we end up back in the bad old days, before those rights were hard-won.

I was interviewing for a technology company in Toronto last year, and the topic of overtime came up. I could sense that the recruiter was uncomfortable with the subject, as she didn’t have a prepared response handy. She said that the company didn’t like overtime, and tried to avoid it whenever possible, but couldn’t otherwise make any guarantees. Anyone would have a similar experience. Overtime is not discussed, and it is sort of accepted that long work hours will be a natural part of the job. Certainly, if you are “driven” and “committed” and “passionate” enough this won’t be an issue, right?

As I mentioned above, IT workers do get paid more, and the unspoken expectation of uncompensated overtime is partly responsible for that. But if we want a more equal society, we should want strong labor protections to apply to all workers, regardless of industry sector. It should be part of building class solidarity. And nobody should be coerced into doing uncompensated work. It is therefore not a coincidence that IT industries are notorious for being strongly anti-union.

https://www.ontario.ca/laws/statute/00e41

https://www.ontario.ca/laws/regulation/010285