5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) uses to employees.

A worker includes a person who:

– carries out work for employment an employer for earnings

– materials services to a company for salaries

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

– is a homeworker

– was a worker

Effective March 21, 2024, a worker includes a person who performs work during a trial period for a company, if the abilities being evaluated during the trial period are abilities used by the company’s employees or could be utilized by employees if there are no other staff members. For example, where an employer of a dining establishment asks a task prospect to work a trial shift waiting tables to show their capability to perform the task, employment even where no employment deal has been made to that candidate, the individual is a staff member under the ESA.

The ESA does not apply to independent contractors, volunteers or other people who are not covered under the ESA. An individual considered a worker might be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– holiday with pay

– notice of termination or termination pay

Under the ESA, companies are not enabled to deal with staff members covered by the Act as if they are not employees. If an employer misclassifies an employee in this method, a work requirements officer can release a notification of conflict that results in a penalty, a prosecution or both against the company.

Please note, the ESA provides minimum requirements only. Some workers may have greater rights under a work contract, 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 between a specific and business (or individual) they are working for figures out whether the individual is an employee and entitled to protections under the ESA. An individual might be considered a staff member under the ESA when at least a few of the following describes the relationship:

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

– business chooses:- what the individual is to do

– just how much the individual will be paid

– where and when the work is carried out

If you’re not sure who is an employee 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 offer general details about who is a staff member but can not offer guidance.

If you’re still unsure whether somebody is a worker, please talk to an attorney.

How to tell who is an independent professional

An independent specialist is somebody who is in company for themselves. A person might be thought about an independent professional, and not covered by the ESA, when at least a few of the following applies:

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

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

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

– chooses whether to farm out a few of the work

Example

Fariah works as a customer support representative for a sales company. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the organization’s workplace. She utilizes business’s telephones and computer systems. She is paid $25.50 per hour. Her employment agreement does not have an end date, employment 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, vacation pay or public vacation pay.

Fariah thinks she might actually be a worker and may be entitled to overtime pay, holiday pay and public vacation pay. She submits 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 in between Fariah and the sales business and discovers that she is a staff member

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

The employment standards officer orders the sales company to:

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

– orders the employer to issue wage declarations and keep records

Employee or employment independent contractor: Common mistaken beliefs

A person may be considered an employee even if:

– the individual and the company agree (orally or in writing) that the person is an independent contractor. It is the relationship in between the specific and the company (or individual) that matters, not the label that is offered to it

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

– sends invoices to business.

– utilizes their own vehicle for work purposes.

Volunteers

Volunteers are not employees under the ESA. However, the fact that someone is called a “volunteer” does not figure out whether that person is a staff member and entitled to the defenses of the ESA.

The main factors that determine whether somebody is a volunteer or a worker are how much:

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

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

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

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

The fact that no salaries were paid does not always indicate that someone is a volunteer. The truth that there was some kind of payment does not always mean someone is an employee. For instance, an honorarium might have been paid, instead of earnings.