Dec 13, 2018

Sweet Revenge: Business Ordered to Pay Children Minimum Wage for Selling Chocolates

Orlov v. Amato, 2003 CanLII 2984 (ON LRB)

This week on Twitter, our firm has been examining the minimum wage from a variety of perspectives. Using the hashtag #minimumwageweek, we shared content ranging from videos of famed economists such as Milton Friedman to historical articles on the original debate when Ontario’s minimum wage was first introduced in 1963.

In this blog article, we thought it would be fun to look at minimum wage from a slightly different angle. Namely, by considering its practical application and some of its many legal quirks.

The current minimum wage in Ontario is $14 per hour. What far less people know, however, is that this is just the “general minimum wage.” There are in fact several other minimum wages for different categories of workers (such as for students, liquor servers, homeworkers and hunting/fishing guides). Likewise, there are a great many exceptions and exemptions to how the minimum wage applies.

Take an odd little case that played out before the Ontario Labour Relations Board (the “OLRB”) back in 2003: Orlov v. Amato.

Alex Orlov was one of several school-aged children who was employed to sell chocolates on behalf of a small business, The All Ontario Youth Group (the “Youth Group”). The children worked between 25 to 135 hours for the Youth Group going door to door selling boxed chocolates. Each understood that they were to be paid $0.50 commission per box sold. The owner of the Youth Group would wave around what he said were “commission cheques” he had issued to other students while driving the children from place to place. Despite this, none of the children received any money from the Youth Group for their work. When one tried to collect, he was told to “f off and stop calling me.”

The Quest for Unpaid Chocolate Money

Not deterred by this turn of events, Alex and two other children who had gone unpaid banded together and filed complaints for unpaid wages with the Ontario Ministry of Labour. Initially, the children were only partially successful. An Employment Standards Officer (the “Officer”) ordered that they were to be paid the missing commissions which they had claimed but nothing more.

Unpaid commissions were not the only remedy sought by the children. In addition, they also pursued payment for outstanding vacation pay and any monies needed to top them up (beyond the ordered commissions) in order to meet minimum wage requirements for each hour worked.

It was at this point that one of the many quirks of the Ontario minimum wage made itself known.

The Officer determined that the children were not entitled to minimum wage protection due to an obscure provision in the regulations of the Employment Standards Act, 2000. Namely, the Officer decided that the children were non-office based “salespersons” whom are exempt from minimum wage protection. By contrast, the children were not considered to be “route salespersons,” or non-office salespersons whom are assigned to very specific routes. Route salespersons are an exception to the exception (what fun!) and subject to minimum wage protection.

With only a partial victory in hand, the children marched onwards and sought a review of the Officer’s Order from the OLRB. There they argued that since their work was subject to a high degree of control by the Youth Group (who decided when and where they worked), they should be considered to be route salespersons (and thus qualify for the minimum wage).

The OLRB sided with the children, stating:

The sales in this case are conducted according to “routes” which are established and determined by the employer and not the employee….There is no doubt that the applicants in this case exercise little if no control over the manner in which sales are conducted. It is really of no consequence why this is the case – whether it is because they are minors and the employer respondent is attempting to ensure their safety in employment or rather because the employer wishes to maximize sales…

In these circumstances the Board finds that the applicants are route salespersons for purposes of section 2(h) of Regulation 285/01 made under the Act. Accordingly, they are entitled to be paid minimum hourly wages and vacation pay in addition to commissions owing.

And so our story comes to an end. The children were ordered to receive their missing wages (and in the process set somewhat of a precedent on how to determine the scope of “route salespersons”). If they actually got paid at the end of the day is, sadly, unknown.

Lessons Learned

Whether its ultimate effects are good, bad or indifferent, the minimum wage in Ontario is far more complicated than most of us give it credit. Exceptions within exceptions abound and different categories apply to different workers. But we know one thing for sure – at least in this case, the minimum wage gave three children their day in Court (so to speak) and they came out ahead. Happy #minimumwageweek!