5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) uses to workers.

A worker consists of an individual who:

– performs work for a company for employment incomes

– materials services to a company for wages

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

– is a homeworker

– was a worker

Effective March 21, 2024, an employee includes a person who carries out work throughout a trial period for an employer, if the abilities being examined throughout the trial duration are abilities used by the company’s employees or could be used by workers if there are no other workers. For example, where an employer of a dining establishment asks a job prospect to work a trial shift waiting tables to demonstrate their capability to perform the job, even where no employment deal has actually been made to that prospect, 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. A specific considered an employee might be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– getaway with pay

– notice of termination or termination pay

Under the ESA, companies are not allowed to deal with staff members covered by the Act as if they are not workers. If an employer misclassifies a worker in this way, a work requirements officer can a notice of conflict that leads to a penalty, a prosecution or both against the company.

Please note, the ESA offers minimum standards only. Some staff members might have higher rights under an employment agreement, collective arrangement, the common law or employment other legislation.

Find out more about staff member rights under the ESA.

How to inform who is an employee

The relationship in between an individual and the business (or individual) they are working for determines whether the person is a staff member and entitled to defenses under the ESA. A person may be thought about an employee under the ESA when at least some of the following explains the relationship:

– the work the private carries out is a fundamental part of the business

– business decides:- what the person is to do

– how much the individual will be paid

– where and when the work is performed

If you’re not sure 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 numerous languages. They can give basic details about who is an employee however can not offer suggestions.

If you’re still uncertain whether someone is a worker, please speak with a legal representative.

How to tell who is an independent contractor

An independent professional is someone who stays in business on their own. An individual may be thought about an independent specialist, and not covered by the ESA, when a minimum of a few of the following uses:

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

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

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

– chooses whether to farm out some of the work

Example

Fariah works as a consumer service representative for a sales company. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business’s workplace. She uses the service’s telephones and computer systems. She is paid $25.50 per hour. Her work agreement does not have an end date, although her company can fire or discipline her for bad efficiency. Her employment agreement mentions that she is an independent contractor therefore she does not get overtime pay, trip pay or public holiday pay.

Fariah thinks she might actually be a worker and might be entitled to overtime pay, holiday pay and public vacation 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 organization and finds that she is a worker

It does not matter that Fariah signed the employment agreement stating that she is an independent specialist since the truths show she is a staff member.

The employment requirements officer orders the sales organization to:

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

– orders the company to release wage statements and keep records

Employee or independent specialist: Common misconceptions

A person may be considered an employee even if:

– the specific and business concur (orally or in writing) that the individual is an independent professional. It is the relationship between the specific and the organization (or individual) that matters, employment not the label that is provided to it

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

– submits invoices to the service.

– uses their own car for work purposes.

Volunteers

Volunteers are not staff members under the ESA. However, the fact that somebody 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 elements that figure out whether someone is a volunteer or a staff member are just how much:

– the organization (or employment individual) benefits from the person’s services.

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

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

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

The fact that no incomes were paid does not necessarily suggest that somebody is a volunteer. The fact that there was some form of payment does not always mean someone is a worker. For instance, an honorarium may have been paid, instead of salaries.