5:00 P.m. in the Business’s Office

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

A worker consists of a person who:

– performs work for a company for incomes

– materials services to a company for salaries

– gets training from an employer, if the ability in which the person is being trained is an ability used by the employer’s staff members

– is a homeworker

– was a worker

Effective March 21, 2024, an employee consists of a person who performs work during a trial period for a company, if the skills being assessed during the trial duration are skills used by the company’s workers or could be utilized by employees if there are no other workers. For example, where an of a restaurant asks a job prospect to work a trial shift waiting tables to show their ability to carry out the task, even where no work deal has actually been made to that candidate, the person is a worker under the ESA.

The ESA does not use to independent professionals, volunteers or employment other people who are not covered under the ESA. An individual thought about an employee may be entitled to rights such as:

– base pay

– overtime pay

– public vacations

– getaway with pay

– notice of termination or termination pay

Under the ESA, employers are not permitted to treat staff members covered by the Act as if they are not workers. If a company misclassifies an employee in this method, a work requirements officer can release a notification of contravention that results in a penalty, a prosecution or both versus the employer.

Please note, the ESA offers minimum standards only. Some workers might have higher rights under an employment agreement, collective arrangement, the common law or other legislation.

Find out more about staff member rights under the ESA.

How to tell who is a worker

The relationship between an individual and the company (or individual) they are working for figures out whether the person is an employee and entitled to securities under the ESA. An individual may be thought about an employee under the ESA when a minimum of a few of the following describes the relationship:

– the work the specific carries out is a fundamental part of business

– business chooses:- what the individual is to do

– just how much the person 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 assist callers in multiple languages. They can provide general info about who is a staff member however can not provide suggestions.

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

How to tell who is an independent contractor

An independent professional is somebody who stays in business on their own. An individual might be considered an independent specialist, and not covered by the ESA, when at least a few of the following uses:

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

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

– identifies how, when or where the work is performed

– decides whether to farm out some of the work

Example

Fariah works as a consumer service representative for a sales company. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the organization’s workplace. She uses the 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 efficiency. Her employment agreement states that she is an independent professional therefore she does not get overtime pay, getaway pay or public holiday pay.

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

An employment requirements officer examines her claim. The officer looks 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 agreement mentioning that she is an independent professional due to the fact that the facts reveal she is a worker.

The employment requirements 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 provide wage declarations and keep records

Employee or independent specialist: Common misconceptions

A person might be considered an employee even if:

– the individual and employment the organization concur (orally or in writing) that the person is an independent specialist. It is the relationship in between the individual and the business (or person) that matters, not the label that is offered to it

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

– submits invoices to the organization.

– utilizes their own lorry for employment work functions.

Volunteers

Volunteers are not staff members under the ESA. However, the reality that somebody is called a “volunteer” does not figure out whether that individual is a worker and entitled to the defenses of the ESA.

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

– the service (or person) advantages from the person’s services.

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

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

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

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