5:00 P.m. in Business’s Office

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

A staff member consists of a person who:

– carries out work for a company for earnings

– supplies services to a company for earnings

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

– is a homeworker

– was an employee

Effective March 21, 2024, a worker consists of a person who carries out work throughout a trial duration for an employer, if the abilities being assessed throughout the trial period are abilities used by the company’s employees or might be used by employees if there are no other staff members. For example, where an employer of a restaurant asks a job candidate to work a trial shift waiting tables to demonstrate their capability to perform the task, even where no work offer has been made to that candidate, the person 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. An individual thought about a worker might be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– vacation with pay

– notification of termination or termination pay

Under the ESA, employers are not permitted to treat staff members covered by the Act as if they are not employees. If an employer misclassifies an employee in this method, a work standards officer can issue a notice of contravention that results in a charge, a prosecution or both versus the employer.

Please note, the ESA supplies minimum requirements only. Some employees might have higher rights under an employment contract, cumulative agreement, the typical law or other legislation.

Learn more about staff member rights under the ESA.

How to inform who is an employee

The relationship in between a private and business (or person) they are working for figures out whether the person is a staff member and entitled to defenses under the ESA. An individual may be considered a staff member under the ESA when a minimum of a few of the following explains the relationship:

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

– business chooses:- what the individual is to do

– how much the individual 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, 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 basic information about who is a staff member however can not provide recommendations.

If you’re still not sure whether someone is a worker, please speak with an attorney.

How to tell who is an independent contractor

An independent professional is somebody who is in business for themselves. An individual might be thought about an independent professional, and not covered by the ESA, when a minimum of a few of the following uses:

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

– the individual:- has the opportunity to make a revenue and referall.us has a risk of losing money from the work

– determines how, when or 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 business. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s workplace. She utilizes the service’s telephones and computer systems. She is paid $25.50 per hour. Her employment agreement does not have an end date, although her employer can fire or discipline her for poor performance. Her work contract mentions that she is an independent contractor and so she does not get overtime pay, trip pay or public holiday pay.

Fariah thinks she may in fact be an employee and may be entitled to overtime pay, vacation pay and public holiday 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 company and discovers that she is a worker

It does not matter that Fariah signed the employment agreement mentioning that she is an independent contractor since the facts show she is a staff member.

The employment requirements officer orders the sales business to:

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

– orders the company to provide wage statements and keep records

or independent specialist: Common mistaken beliefs

An individual might be considered a staff member even if:

– the private and business concur (orally or in writing) that the individual is an independent specialist. It is the relationship in between the specific and the business (or individual) that matters, not the label that is offered to it

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

– submits invoices to the organization.

– utilizes their own automobile for work purposes.

Volunteers

Volunteers are not staff members under the ESA. However, the reality that someone is called a “volunteer” does not identify whether that individual is an employee and entitled to the securities of the ESA.

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

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

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

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

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

The reality that no incomes were paid does not necessarily mean that someone is a volunteer. The reality that there was some kind of payment does not necessarily mean someone is a staff member. For instance, an honorarium might have been paid, rather than earnings.