Beyond Decriminalization: Sex-work, Human Rights and a New ...

PIVOT LEGAL SOCIETYmost arrangements, sex workers are not paid for time they spend at work waiting for clients – whichcan be the majority of the time. Several workers described having to clean and do secretarial workwithout compensation while waiting for clients. This common practice is a clear breach of s. 34 of theESA, which states that if an employer requires an employee to report for work on any given day, theemployer must pay the employee for a minimum of two hours at the regular wage whether or not theemployee starts the actual work they are being paid to perform. Workers who not only attend workbut also spend time performing any service required by the employer must be compensated for all oftheir time spent working, and, at a minimum, for two hours. For example, this means that a workerwho shows up and is told to go home without starting work gets paid for two hours, a worker whoshows up and does 10 minutes of cleaning and then leaves work is paid for two hours, and a workerwho shows up and spends six hours cleaning, and then leaves work is paid for six hours. An escortstates that these same benefits should apply to prostitution.98A. But you should still get paid for showing up. Like, even if you have one date. If youare scheduled for one date, you should still get paid for the minimum, whatever thestandard is. I think it is two hours, to show up.- female off-street out-call sex workerSex workers raised several other work-related financial issues. One important issue was the employerpractice of making workers pay for supplies related to occupational health and safety. For example,some massage parlours and escort agencies expect workers to pay for their own condoms and lubricants.Some sex workers felt that the employer should pay for these work-related supplies. In somecases, workers pay for transportation, security, administrative services, and other work-related costs.The result is that a worker who does not have a very profitable shift at work can end up owing moneyto the employer.Sex workers would benefit from the application of s. 21(2) of the ESA, which provides that anemployer cannot require an employee to pay any of the employer’s business costs unless authorizedby the regulations. Thus some of these charges – notably administrative services, transportation andsecurity – are likely contrary to the ESA.Some workers complained that they were subject to fines or penalties by their employers forcalling in sick, or not responding to a client call:A. So that they [the government] know who is running them [sex work businesses] andto have control over the organizations that are having these girls, making sure whatkind of environment it’s in, how they are being treated, what kind of fees that thesepeople are charging. I mean, all that stuff, needs to be regulated. Because it jumpsaround from one agency to the next agency, then that agency decides, “oh! I am goingto charge you for this!” So next thing you know you have got fines on your board,hundreds and hundreds of fines. So there’s no control over what they can do of takingthat money, that girl’s money, when she is working for them. And, that gets ridiculous.I’ve seen some places go up into the hundreds.- female off-street out-call sex workerUnder the ESA, such fines are illegal. Section 21(1) says that unless authorized by legislation, noemployer can deduct or withhold all or part of an employee’s wages. In this sense, many sex industryemployers are currently breaching their employees’ rights under the ESA.Hours of work, overtime, statutory holidays, vacation time and sick daysThe ESA states that an employee must have at least 32 hours in a row each week that they do notwork. If an employee works during this period, it is considered overtime, payable at a rate of timeand-a-half.Also, an employee is entitled to have eight hours off between shifts.