5:00 P.m. in the Business’s Office

The Employment Standards Act (ESA) uses to workers.

A worker includes a person who:

– carries out work for a company for wages

– materials services to a company for wages

– receives training from an employer, if the skill in which the person is being trained is a skill used by the company’s staff members

– is a homeworker

– was an employee

Effective March 21, 2024, an employee includes an individual who carries out work throughout a trial duration for an employer, if the skills being assessed during the trial period are skills utilized by the employer’s employees or might be used by staff members if there are no other staff members. For example, where a company of a restaurant asks a job candidate to work a trial shift waiting tables to demonstrate their capability to carry out the job, even where no work deal has been made to that candidate, the individual is a worker under the ESA.

The ESA does not apply to independent professionals, job volunteers or other people who are not covered under the ESA. A specific thought about a staff member may be entitled to rights such as:

– minimum wage

– overtime pay

– public vacations

– trip with pay

– notice of termination or termination pay

Under the ESA, companies are not permitted to deal with employees covered by the Act as if they are not workers. If a company misclassifies an employee in this way, an employment requirements officer can provide a notice of contravention that leads to a penalty, 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 agreement, the common law or other legislation.

Learn more about employee rights under the ESA.

How to inform who is a staff member

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

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

– the business decides:- 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 uncertain 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 several languages. They can offer basic details about who is a staff member however can not supply advice.

If you’re still not sure whether someone is a staff member, please talk with a legal representative.

How to inform who is an independent specialist

An independent specialist is someone who is in company on their own. An individual might be considered an independent professional, job and not covered by the ESA, when a minimum of a few of the following uses:

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

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

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

– decides whether to farm out a few of the work

Example

Fariah works as a client service representative for a sales service. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s office. She utilizes 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 job efficiency. Her employment agreement specifies that she is an independent contractor and so she does not get overtime pay, holiday pay or public holiday pay.

Fariah believes she may in fact 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 examines her claim. The officer looks at the relationship in between Fariah and the sales organization and job finds that she is a worker

It does not matter that Fariah signed the employment agreement stating that she is an independent professional because the realities reveal she is a worker.

The employment requirements officer orders the to:

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

– orders the employer to provide wage declarations and keep records

Employee or independent contractor: Common misconceptions

An individual may be considered a worker even if:

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

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

– submits billings to business.

– utilizes their own lorry for work functions.

Volunteers

Volunteers are not workers under the ESA. However, the reality that someone is called a “volunteer” does not figure out whether that individual is a staff member and entitled to the securities of the ESA.

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

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

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

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

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

The truth that no earnings were paid does not always mean that someone is a volunteer. The fact that there was some type of payment does not always indicate somebody is a staff member. For instance, an honorarium might have been paid, rather than wages.