5:00 P.m. in the Business’s Office

The Employment Standards Act (ESA) uses to workers.

A worker consists of an individual who:

– performs work for an employer for earnings

– materials services to a company for salaries

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

– is a homeworker

– was an employee

Effective March 21, 2024, a staff member consists of an individual who performs work throughout a trial duration for an employer, if the abilities being evaluated throughout the trial period are skills used by the employer’s employees or could be used by employees if there are no other staff members. For example, where an employer of a restaurant asks a task prospect to work a trial shift waiting tables to demonstrate their capability to perform the task, even where no work deal has been made to that prospect, the individual is an employee under the ESA.

The ESA does not apply to independent specialists, volunteers or other individuals who are not covered under the ESA. An individual considered a staff member may be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– trip with pay

– notification of termination or

Under the ESA, employers are not permitted to deal with staff members covered by the Act as if they are not staff members. If an employer misclassifies a worker in this method, a work requirements officer can provide a notification of breach that results in a charge, a prosecution or both against the employer.

Please note, the ESA supplies minimum standards just. Some workers might have greater rights under a work contract, cumulative agreement, the common law or other legislation.

Find out more about worker rights under the ESA.

How to tell who is a worker

The relationship in between an individual and business (or person) they are working for figures out whether the person is a worker and entitled to defenses under the ESA. A person may be considered a staff member under the ESA when at least some of the following describes the relationship:

– the work the private performs is a vital part of the service

– business chooses:- what the person 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 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 help callers in several languages. They can give general details about who is a worker but can not offer suggestions.

If you’re still unsure whether someone is a worker, please talk to a lawyer.

How to tell who is an independent specialist

An independent contractor is somebody who is in company for themselves. A person may be thought about an independent professional, and not covered by the ESA, when a minimum of a few of the following uses:

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

– the person:- has the chance to make an earnings and has a threat 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 client service agent for a sales company. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s workplace. She uses the company’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 poor performance. Her employment agreement mentions that she is an independent professional and so she does not receive overtime pay, getaway pay or public holiday pay.

Fariah thinks she may actually be a staff member and may 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 standards officer investigates her claim. The officer looks at the relationship in between Fariah and the sales organization and finds that she is an employee

It does not matter that Fariah signed the employment contract stating that she is an independent contractor since the truths show she is a worker.

The work standards officer orders the sales company to:

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

– orders the employer to issue wage declarations and keep records

Employee or independent contractor: Common mistaken beliefs

An individual might be thought about an employee even if:

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

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

– sends invoices to the organization.

– uses their own vehicle for work purposes.

Volunteers

Volunteers are not employees under the ESA. However, the fact that somebody is called a “volunteer” does not identify whether that individual is an employee and entitled to the protections of the ESA.

The primary factors that determine whether somebody is a volunteer or a staff member are how much:

– the business (or person) take advantage of the person’s services.

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

In family-run businesses, 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 offering services to the family, rather than services in pursuit of a living, that person is most likely to be a volunteer.

The fact that no incomes were paid does not always mean that someone is a volunteer. The fact that there was some kind of payment does not always indicate someone is a staff member. For example, an honorarium may have been paid, rather than wages.