5:00 P.m. in Business’s Office

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

A staff member consists of a person who:

– performs work for an employer for salaries

– products services to a company for wages

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

– is a homeworker

– was a worker

Effective March 21, 2024, an employee consists of an individual who performs work throughout a trial period for an employer, if the skills being evaluated during the trial duration are skills utilized by the employer’s employees or might be used by staff members if there are no other staff members. For instance, where an employer of a dining establishment asks a task candidate to work a trial shift waiting tables to show their capability to carry out the job, even where no work offer has actually been made to that prospect, the person is a staff member under the ESA.

The ESA does not use to independent specialists, volunteers or other individuals who are not covered under the ESA. A specific considered an employee may be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– trip with pay

– notification of termination or termination pay

Under the ESA, employers are not allowed to treat employees covered by the Act as if they are not workers. If an employer misclassifies a staff member in this method, employment a work standards officer can release a notice of conflict that leads to a charge, a prosecution or both versus the employer.

Please note, the ESA provides minimum standards only. Some workers might have greater rights under a work agreement, cumulative arrangement, the typical law or other legislation.

Discover more about staff member rights under the ESA.

How to inform who is a staff member

The relationship between a specific and business (or individual) they are working for identifies whether the individual is a staff member and entitled to defenses under the ESA. An individual might be thought about an employee under the ESA when a minimum of a few of the following explains the relationship:

– the work the individual performs is a vital part of business

– the service decides:- what the individual is to do

– how much the individual will be paid

– where and when the work is performed

If you’re unsure who is a staff member 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 several languages. They can offer general information about who is an employee however can not offer advice.

If you’re still not sure whether somebody is a staff member, please talk with a lawyer.

How to inform who is an independent contractor

An independent specialist is somebody 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 a few of the following applies:

– business can end the person’s agreement for services, however can not discipline the person

– the individual:- has the chance to make a profit and has a risk of losing cash from the work

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

– decides whether to subcontract a few of the work

Example

Fariah works as a client service agent for a sales business. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service’s office. She utilizes the organization’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 poor employment efficiency. Her employment agreement mentions that she is an independent professional therefore she does not get overtime pay, vacation pay or public holiday pay.

Fariah believes she might actually be a staff member and might be entitled to overtime pay, getaway pay and public vacation pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.

A work requirements officer investigates her claim. The takes a look at the relationship between Fariah and the sales service and finds that she is an employee

It does not matter that Fariah signed the employment contract mentioning that she is an independent contractor because the truths reveal she is a worker.

The employment requirements officer orders the sales service to:

– pay Fariah the overtime pay, vacation pay and public vacation pay that she was entitled to as a staff member.

– orders the employer to issue wage declarations and keep records

Employee or independent specialist: Common misconceptions

An individual might be thought about an employee even if:

– the individual and business agree (orally or in composing) that the person is an independent specialist. It is the relationship in between the specific and business (or individual) that matters, not the label that is given to it

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

– submits invoices to the business.

– utilizes their own lorry for employment work purposes.

Volunteers

Volunteers are not employees under the ESA. However, the fact that somebody is called a “volunteer” does not determine whether that individual is a staff member and entitled to the securities of the ESA.

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

– the company (or individual) take advantage of the person’s services.

– the individual views the arrangement as being in pursuit of a living.

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

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

The fact that no earnings were paid does not always suggest that somebody is a volunteer. The truth that there was some form of payment does not necessarily indicate somebody is a staff member. For example, an honorarium might have been paid, rather than earnings.