5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) applies to workers.

An employee includes an individual who:

– performs work for a company for earnings

– products services to a company for incomes

– receives training from an employer, if the ability in which the individual is being trained is a skill utilized by the employer’s workers

– is a homeworker

– was a worker

Effective March 21, 2024, a worker includes an individual who performs work throughout a trial duration for a company, if the abilities being assessed during the trial period are abilities utilized by the company’s staff members or might be utilized by workers if there are no other employees. For instance, where an employer of a restaurant asks a job prospect to work a trial shift waiting tables to demonstrate their ability to perform the task, even where no work deal has actually been made to that prospect, the individual is a worker under the ESA.

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

– minimum wage

– overtime pay

– public holidays

– holiday with pay

– notification of termination or termination pay

Under the ESA, companies are not allowed to treat workers covered by the Act as if they are not staff members. If an employer misclassifies an employee in this method, a work requirements officer can provide a notice of conflict that leads to a penalty, a prosecution or both versus the employer.

Please note, the ESA provides minimum standards only. Some employees may have higher rights under an employment agreement, collective contract, 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 in between a private and job business (or person) they are working for identifies whether the individual is an employee and entitled to defenses under the ESA. An individual might be thought about a worker under the ESA when a minimum of a few of the following explains the relationship:

– the work the individual performs is a fundamental part of the service

– business chooses:- what the individual is to do

– just how much the person will be paid

– where and when the work is carried out

If you’re not sure 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 assist callers in several languages. They can offer basic information about who is an employee but can not supply advice.

If you’re still unsure whether someone is a staff member, please speak with an attorney.

How to tell who is an independent specialist

An independent professional is someone who is in organization for themselves. An individual might be considered an independent specialist, and not covered by the ESA, when at least some of the following applies:

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

– the individual:- has the chance to earn a profit and has a danger of losing money from the work

– determines how, when or where the work is performed

– chooses whether to farm out a few of the work

Example

Fariah works as a client service representative for a sales company. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the company’s workplace. She uses 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 poor performance. Her work agreement states that she is an independent contractor and so she does not get overtime pay, getaway pay or public vacation pay.

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

An employment standards officer examines her claim. The officer takes a look at the relationship in between Fariah and the sales company and discovers that she is an employee

It does not matter that the employment agreement specifying that she is an independent contractor due to the fact that the facts reveal she is an employee.

The employment standards officer orders the sales company to:

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

– orders the company to issue wage declarations and keep records

Employee or independent professional: Common misunderstandings

A person might be thought about a staff member even if:

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

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

– sends billings to the organization.

– utilizes their own automobile for work functions.

Volunteers

Volunteers are not staff members under the ESA. However, the truth that someone is called a “volunteer” does not identify whether that person is a worker and entitled to the securities of the ESA.

The main aspects that identify whether someone is a volunteer or an employee are how much:

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

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

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

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

The fact that no wages were paid does not necessarily imply that somebody is a volunteer. The truth that there was some type of payment does not necessarily mean somebody is a worker. For instance, an honorarium may have been paid, instead of salaries.