HO! HO! Oh No! – What Type of Employer is Santa Claus?
Like most children, I grew up imagining what it would be like at the North Pole every holiday season. The image in my head was certainly much like you see depicted in holiday cartoons, shows and movies. Elves bustling about working endlessly in the workshop to make toys for the children of the world while they joyfully sing Christmas carols, a large stone fireplace located in the middle of the factory to provide a warm and cozy feel throughout the workshop, an endless supply of hot cocoa, and presents being loaded into the sleigh for delivery on Christmas Eve. And overlooking it all is Santa himself – looking out over the workshop as he checked his Naughty and Nice list and peeked in on children when they were sleeping and when they were awake. Just the thought of this scene can bring a smile to your face and warm your heart. But as Employment Counsel, I wonder now whether it really is all cocoa and smiles being an employee of Santa Claus. Looking at workplace requirements from an Ontario perspective, Santa the employer may be exposed in a very different light.
Hours of Work and Overtime
First, the elves work around the clock year-round, particularly as we get closer to Christmas, making toys for all the girls and boys. Working such long hours raises questions about the hours the elves are required to work and what overtime pay they receive.
Under the Ontario Employment Standards Act, 2000 (the “ESA”), there are limits to the number of hours that an employee is required to work. For most employees their hours of work are limited to 8 hours in a day and 48 hours in a work week. There are some employees who are exempt from the hours of work limits, but at no time have I seen “Toy-Making Elves” on that list. In addition, subject to some exceptions, employees in Ontario are entitled to overtime pay. Whether the employee is paid an hourly wage, salary, or even in cocoa, an employer must pay an employee 1.5 times their regular rate of pay for each hour they work in excess of 44 hours in a work week. Of course, an employer may enter into an agreement with an employee that requires the employee to work more than 48 hours per week and/or an agreement to average the employee’s work hours over a period of two or more weeks for the purpose of calculating overtime pay. To do so, the employer must comply with each the following steps:
The employer must first provide the employee with a copy of the Ministry of Labour’s Information Sheet, the “Information for Employees About Hours of Work and Overtime Pay”;
The agreement to work beyond 8 hours per day and/or 48 hours in a work week must be executed by the employee in writing or electronically; and
The employer must apply for, and obtain, approval from the Director of Employment Standards for the extended work hours agreement (that is, until Bill 66 kicks in).[i]
Hiring Practices and Discrimination
Other than Mrs. Claus, you don’t hear of anyone other than elves working for Santa (and one Abominable Snowman if one classic holiday movie is to be believed). If Santa only recruits and hires elves to work in his North Pole workshop manufacturing toys, he may be at risk of claims for discrimination from other qualified toy makers.
The Ontario Human Rights Code provides that each person in Ontario is entitled to equal opportunities in employment free from discrimination. This means that hiring practices, the development and implementation of workplace policies and procedures, salaries and work conditions must not discriminate (directly or indirectly) against any employee on the basis of any of the protected grounds in the Code including race, religious beliefs, gender, etc. It is difficult to believe that the Ontario Human Rights Tribunal would deem being an elf as a bona fide or genuine occupational requirement to be a successful toy maker. There are, most certainly, qualified toy makers who are not elves. Also, is it a requirement that the elves celebrate Christmas to work in Santa’s workshop? What if the elf celebrated Hanukkah or Kwanza? Are Buddhist, Hindu, Wicca, or Muslim elves equally welcomed as employees in Santa’s Workshop? I certainly like to believe that Santa is an equal opportunity and inclusive employer, but something seems amiss here.
Workplace Safety
In addition to the tools and equipment at use in the Workshop itself, elves are exposed to a variety of workplace hazards in the course of their employment. The Occupational Health and Safety Act, 1995 sets out the obligations for each of Santa and the elves in management to provide a safe and healthy work environment. Regular reviews and assessments of the workplace ought to be undertaken by Santa and the Joint Health and Safety Committee at the Workshop. In addition to identifying potential workplace hazards, regular “toolbox talks” should be conducted with the elves in the various parts of the Workshop to review potential hazards and reinforce the health and safety practices and procedures in place at the beginning of the workday.
Other health and safety considerations are as follows:
Santa must ensure that all elves have completed the basic mandatory Occupational Health and Safety Awareness training and Santa’s HR department must maintain proof of such training.
Some elves work with Santa’s reindeer. Proper work shoes with reinforced (and not curled) toes on footwear is required. After all, Santa’s magic reindeer may fly, but they can still stomp on a foot.
Elves working in Santa’s kitchen preparing the milk, cookies and cocoa for the workers should be trained in proper food handling procedures and hand-washing requirements.
Landing a sleigh on rooftops and climbing down chimneys with a sack full of toys can be treacherous work. Elves who travel with Santa on Christmas Eve should be equipped with proper Personal Protection Equipment, including fall-arrest equip and harnesses. The sleigh should be equipped with guardrails and proper seatbelts to prevent falls and ensure the safety of both Santa and the elves during travel. Finally, the elves must also complete a working at heights training program that has been approved by the Province’s Chief Protection Officer.
Background Checks
As noted above, Santa’s elves work in environments other than the Workshop. Some travel with Santa on Christmas Eve to deliver the toys to the children on the Nice List, and still others work with Santa leading up to Christmas to visit with children in shopping malls for photos with the big man himself. Santa will want to ensure that he has clear background checks, including vulnerable sector screening, for each of the elves working with children.
On November 1, 2018 the Police Record Checks Reform Act became law in Ontario. The Act places limits on what information the police can disclose to potential employers, volunteer agencies and foreign governments and requires the consent of the individual before any police record or criminal background check can be completed.
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There is, of course, more to review. Neutral dress codes for all elves regardless of gender, gender identity or expression; public holiday pay for the elves, and granting reasonable time off for elves to observe religious holidays.
But my intention is not to be a Scrooge this holiday season. With his twinkling eyes and joyful elves, it certainly seems that Santa has done his homework and is getting it right (assuming the North Pole’s employment laws are no more onerous than those in Ontario). Disgruntled elves can certainly make it difficult for Santa to meet the demands of the holiday season but again this year it seems that we are full steam ahead with visions of sugar plums and a Happy Holiday!
[i] On December 6, 2018 the Ontario government introduced Bill 66, the Restoring Ontario’s Competitiveness Act, 2018. In our earlier PH Report Chetan Muram provides greater detail on the proposed changes and what it means to Ontario employers. Unfortunately for Santa, Bill 66 is not yet the law in Ontario. The Bill has only passed First Reading and comments are being welcomed on the legislation until January 20, 2019.
