5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) applies to staff members.

An employee consists of a person who:

– performs work for an employer for incomes

– materials services to a company for incomes

– receives training from a company, if the skill in which the person is being trained is a skill used by the employer’s employees

– is a homeworker

– was an employee

Effective March 21, 2024, a staff member includes a person who carries out work throughout a trial duration for an employer, if the abilities being examined throughout the trial period are skills utilized by the company’s employees or could be utilized by workers if there are no other staff members. For example, where an employer of a dining establishment asks a task candidate to work a trial shift waiting tables to demonstrate their capability to carry out the job, even where no work offer has been made to that candidate, the individual is an employee under the ESA.

The ESA does not apply to independent contractors, volunteers or other individuals who are not covered under the ESA. A specific considered a staff member might be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– vacation with pay

– notice of termination or termination pay

Under the ESA, employers are not allowed to deal with employees covered by the Act as if they are not staff members. If a company misclassifies an employee in this method, a work standards officer can issue a notification of contravention that results in a charge, a prosecution or both against the company.

Please note, the ESA offers minimum requirements only. Some staff members might have greater rights under an employment agreement, collective contract, the common law or other legislation.

Discover more about worker rights under the ESA.

How to inform who is a worker

The relationship between a specific and the organization (or person) they are working for employment figures out whether the person is a staff member and entitled to securities under the ESA. An individual may be thought about a staff member under the ESA when a minimum of some of the following describes the relationship:

– the work the private carries out is a vital part of the business

– business chooses:- what the individual is to do

– how much the person will be paid

– where and when the work is carried out

If you’re unsure who is an employee under the ESA, call the Ministry of Labour, Immigration, Training and Skills Development’s Employment Standards Information Centre at:

– 416-326-7160

– toll-free at 1-800-531-5551

TTY 1-866-567-8893

The Information Centre can help callers in numerous languages. They can offer general info about who is an employee but can not offer guidance.

If you’re still uncertain whether somebody is an employee, please talk with a legal representative.

How to inform who is an independent specialist

An independent professional is someone who stays in business on their own. A person may be thought about an independent specialist, and not covered by the ESA, when a minimum of some of the following applies:

– the service can end the individual’s contract for services, however can not discipline the individual

– the person:- has the opportunity to earn a profit and has a risk of losing money from the work

– determines how, when or where the work is carried out

– decides whether to farm out a few of the work

Example

Fariah works as a customer care agent for a sales service. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the organization’s office. She utilizes business’s telephones and computers. She is paid $25.50 per hour. Her employment agreement does not have an end date, although her employer can fire or discipline her for bad efficiency. Her employment agreement mentions that she is an independent professional and so she does not receive overtime pay, holiday pay or public holiday pay.

Fariah believes she may actually be an employee and might be entitled to overtime pay, getaway pay and employment public vacation pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.

A work standards officer examines her claim. The officer looks at the relationship in between Fariah and the sales business and discovers that she is a worker

It does not matter that Fariah signed the work agreement specifying that she is an independent contractor since the realities show she is a worker.

The work standards officer orders the sales organization to:

– pay Fariah the overtime pay, holiday pay and public vacation pay that she was entitled to as an employee.

– orders the employer to provide wage declarations and keep records

Employee or independent contractor: employment Common misunderstandings

A person might be considered a worker even if:

– the private and business agree (orally or in writing) that the person is an independent contractor. It is the relationship in between the specific and business (or individual) that matters, not the label that is provided to it

– the individual:- charges the harmonized sales tax (HST).

– submits invoices to business.

– utilizes their own car for work functions.

Volunteers

Volunteers are not employees under the ESA. However, the reality that someone is called a «volunteer» does not figure out whether that person is an employee and entitled to the securities of the ESA.

The main elements that identify whether somebody is a volunteer or a staff member are just how much:

– business (or employment individual) gain from the individual’s services.

– the private views the plan as being in pursuit of a living.

In family-run companies, the will frequently be whether the person is providing services in pursuit of a living or in service of the family.

If the person is offering services to the household, rather than services in pursuit of a living, that individual is most likely to be a volunteer.

The fact that no earnings were paid does not always mean that somebody is a volunteer. The reality that there was some kind of payment does not necessarily mean someone is a worker. For example, an honorarium may have been paid, rather than salaries.