5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) uses to employees.

A staff member includes a person who:

– performs work for an employer for incomes

– products services to an employer for earnings

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

– is a homeworker

– was a worker

Effective March 21, 2024, a worker includes a person who carries out work throughout a for an employer, if the skills being assessed throughout the trial period are abilities utilized by the company’s employees or job could be used by employees if there are no other staff members. For instance, where a company of a dining establishment asks a job candidate to work a trial shift waiting tables to show their capability to carry out the task, even where no employment offer has been made to that candidate, the individual is a worker under the ESA.

The ESA does not apply to independent specialists, volunteers or other individuals who are not covered under the ESA. A private considered a worker might be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– getaway with pay

– notification of termination or termination pay

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

Please note, the ESA provides minimum requirements only. Some employees might have higher rights under a work contract, collective arrangement, the common law or other legislation.

Learn more about staff member rights under the ESA.

How to tell who is a staff member

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

– the work the individual carries out is a vital part of business

– the organization chooses:- what the individual is to do

– just how much the person will be paid

– where and when the work is carried out

If you’re unsure who is a staff member under the ESA, call the Ministry of Labour, Immigration, job 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 multiple languages. They can give basic details about who is an employee however can not provide guidance.

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

How to inform who is an independent professional

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

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

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

– identifies how, when or job where the work is performed

– decides whether to farm out some 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 company’s workplace. She uses the 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 poor performance. Her employment agreement states that she is an independent contractor and so she does not get overtime pay, holiday pay or public vacation pay.

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

An employment standards officer examines her claim. The officer looks at the relationship in between Fariah and the sales organization and finds that she is a staff member

It does not matter that Fariah signed the employment agreement stating that she is an independent specialist since the truths reveal she is an employee.

The employment standards officer orders the sales business to:

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

– orders the company to provide wage statements and keep records

Employee or independent specialist: Common misconceptions

A person might be thought about a staff member even if:

– the private and the organization agree (orally or in composing) that the person is an independent specialist. It is the relationship in between the individual and business (or individual) that matters, not the label that is given to it

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

– submits billings to business.

– uses their own car for work purposes.

Volunteers

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

The primary factors that determine whether someone is a volunteer or an employee are just how much:

– the organization (or individual) advantages from the individual’s services.

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

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

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

The reality that no salaries were paid does not necessarily indicate that somebody is a volunteer. The reality that there was some form of payment does not always suggest someone is an employee. For instance, an honorarium may have been paid, rather than wages.