5:00 P.m. in Business’s Office

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

A worker consists of an individual who:

– carries out work for an employer for earnings

– products services to an employer for salaries

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

– is a homeworker

– was a staff member

Effective March 21, 2024, a staff member includes a person who performs work throughout a trial duration for a company, if the abilities being assessed throughout the trial period are abilities utilized by the company’s staff members or could be utilized by staff members if there are no other employees. For example, where an employer of a restaurant asks a task candidate to work a trial shift waiting tables to show their ability to perform the job, even where no employment offer has 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 thought about a staff member might be entitled to rights such as:

– base pay

– overtime pay

– public vacations

– vacation with pay

– notice of termination or termination pay

Under the ESA, companies are not permitted to treat employees covered by the Act as if they are not workers. If a company misclassifies a worker in this way, an employment requirements officer can issue a notice of conflict that leads to a penalty, a prosecution or both versus the employer.

Please note, employment the ESA supplies minimum standards only. Some workers may have higher rights under a work contract, cumulative arrangement, the typical law or other legislation.

Find out more about employee rights under the ESA.

How to tell who is an employee

The relationship between a private and the business (or person) they are working for identifies whether the person is a worker and employment entitled to protections under the ESA. An individual may be considered a worker under the ESA when at least a few of the following the relationship:

– the work the specific performs is an essential part of business

– business chooses:- what the person is to do

– how much the individual will be paid

– where and when the work is performed

If you’re not sure who is a worker 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 give basic details about who is a staff member however can not provide suggestions.

If you’re still uncertain whether someone is a staff member, please speak to a legal representative.

How to tell who is an independent specialist

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

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

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

– identifies how, when or where the work is performed

– chooses whether to subcontract a few of the work

Example

Fariah works as a client service agent for a sales company. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s workplace. She uses business’s telephones and computer systems. 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 specifies that she is an independent contractor and so she does not get overtime pay, employment getaway pay or public holiday pay.

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

An employment requirements officer examines 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 work agreement stating that she is an independent contractor since the realities show she is a staff member.

The employment standards officer orders the sales business to:

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

– orders the employer to issue wage declarations and keep records

Employee or independent specialist: Common misunderstandings

An individual might be considered a worker even if:

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

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

– submits billings to the business.

– uses their own vehicle for work purposes.

Volunteers

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

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

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

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

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

If the person is providing services to the household, instead of services in pursuit of a living, that person is more most likely to be a volunteer.

The truth that no incomes were paid does not always suggest that somebody is a volunteer. The fact that there was some form of payment does not necessarily mean someone is a worker. For instance, an honorarium might have been paid, instead of earnings.