5:00 P.m. in the Business’s Office

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

A worker consists of an individual who:

– performs work for a company for earnings

– materials services to an employer for incomes

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

– is a homeworker

– was an employee

Effective March 21, 2024, a worker includes a person who carries out work throughout a trial duration for a company, if the skills being assessed during the trial duration are abilities used by the company’s workers or might be used by workers if there are no other workers. For instance, where an employer of a restaurant asks a job prospect to work a trial shift waiting tables to show their capability to perform the job, even where no employment deal has been made to that candidate, the individual is a staff member under the ESA.

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

– minimum wage

– overtime pay

– public holidays

– getaway with pay

– notice of termination or termination pay

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

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

Discover more about employee rights under the ESA.

How to tell who is a staff member

The relationship between a private and the service (or person) they are working for identifies whether the individual is a staff member and entitled to protections under the ESA. An individual might be thought about a worker under the ESA when a minimum of some of the following describes the relationship:

– the work the individual performs is a fundamental part of the 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 uncertain who is a worker under the ESA, call the Ministry of Labour, Immigration, referall.us 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 a staff member however can not offer guidance.

If you’re still not sure whether someone is an employee, please speak with a lawyer.

How to inform who is an independent contractor

An independent contractor is someone who is in organization on their own. A person might be considered an independent contractor, and not covered by the ESA, when a minimum of a few of the following applies:

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

– the individual:- has the opportunity to make an earnings and has a threat of losing money from the work

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

– chooses whether to farm out some of the work

Example

Fariah works as a customer support representative for a sales service. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s workplace. 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 company can fire or discipline her for bad performance. Her employment agreement states that she is an independent professional and so she does not receive overtime pay, vacation pay or public vacation pay.

Fariah thinks she might really be an employee and may be entitled to overtime pay, getaway pay and public holiday pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.

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

It does not matter that Fariah signed the employment agreement mentioning that she is an independent contractor since the realities show she is a staff member.

The work standards officer orders the sales organization to:

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

– orders the employer to issue wage statements and keep records

Employee or independent professional: Common mistaken beliefs

An individual might be considered an employee even if:

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

– the individual: the balanced sales tax (HST).

– submits invoices to business.

– utilizes their own lorry for work functions.

Volunteers

Volunteers are not workers under the ESA. However, the fact that somebody is called a “volunteer” does not determine whether that individual is a worker and entitled to the defenses of the ESA.

The primary factors that determine whether someone is a volunteer or a worker are how much:

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

– the specific views the plan as remaining in pursuit of a living.

In family-run services, the concern will often be whether the individual is offering services in pursuit of a living or in service of the household.

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

The truth that no incomes were paid does not necessarily imply that somebody is a volunteer. The reality that there was some type of payment does not necessarily imply someone is a staff member. For instance, an honorarium may have been paid, rather than incomes.