As discussed in previous blog posts in our farming series, the Employment Standards Act, 2000 (“ESA”) outlines farming exemptions, This allows certain employers flexibility under the ESA, particularly when it comes to hours of work, overtime, and rest periods.
The crux is that not every worker at every farm automatically falls under the ESA’s exemptions – there are important scenarios where this exemption may not apply. Farm owners and operators must understand the limits of these rules – failure to do so can lead to costly legal consequences.
What is the Farming Exemption?
Under the ESA, the farming exemption applies to agricultural operations, giving farmers certain leeway in employment standards. For example, farm workers are not entitled to overtime pay, and there are exemptions from rules governing hours of work and mandatory rest periods. The rationale is that farming often involves seasonal or unpredictable work conditions that differ from other industries.
Mixed Operations: Where the Exemption Stops
One of the key areas where the farming exemption may not apply is in mixed operations, where a farm engages in both farming and non-farming activities. While the ESA covers a broad range of activities considered farming, other activities beyond what is considered ‘primary production’ (such as food processing, retailing, or agritourism) might not be exempt. (Highline Produce Limited v. Flieler, 2009 CanLII 40205 (ON LRB) at para 23.)
For example, if a farm also operates a store or restaurant on-site, the employees working exclusively in those areas may not fall under the farming exemption, even if they are employed by the same business. This is because different rules under the ESA govern activities like retail and hospitality.
Office Roles Likely Not Covered by the Farming Exemption
Even within a farming operation, not all roles may be eligible for the exemption. Employees who perform work that is only tangentially related to farming—such as administrative staff, marketing personnel, or workers maintaining equipment—may be entitled to full ESA protections. This can include entitlement to overtime pay, vacation pay, and limits on work hours.
Contract Workers and Subcontractors
Contract workers and subcontractors often present grey areas in farming operations. While the farming exemption might apply to farm employees, it may not cover subcontractors who provide specialized services, such as equipment maintenance or construction on farm property. Employers should carefully consider the classification of these workers and consult with legal professionals to ensure they are not misclassifying employees.
Keeping Detailed Records
For farm employers, one of the best ways to avoid running afoul of the ESA is to maintain accurate and detailed records of the duties performed by employees. If there’s any uncertainty about whether the farming exemption applies to certain workers or tasks, documenting the work being done can help clarify matters and provide evidence in the event of a dispute.
Conclusion
While farming is a unique industry, it’s important not to assume that all farm-related work is exempt from the ESA. Consulting an employment lawyer who understands the specifics of Ontario’s farming exemption can save employers from costly penalties or lawsuits down the line. Whether you run a traditional farm or a business that mixes farming with other commercial activities, knowing when the farming exemption stops is critical to staying compliant.
If you would like to know more about farming exemptions, please refer to other blog posts in our series here. For more tailored advice on whether your specific employees fall under farming exemptions, or if you have specific concerns or need guidance on best practices for applying these exemptions, please reach out to us.