5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) uses to workers.

A staff member includes an individual who:

– performs work for an employer for employment earnings

– supplies services to an employer for wages

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

– is a homeworker

– was a worker

Effective March 21, 2024, an employee consists of an individual who carries out work throughout a trial period for an employer, if the abilities being evaluated throughout the trial duration are abilities used by the employer’s workers or could be utilized by employees if there are no other staff members. For instance, employment where an employer of a restaurant asks a job prospect to work a trial shift waiting tables to show their ability to carry out the job, even where no employment deal has actually been made to that prospect, the person is a worker under the ESA.

The ESA does not use to independent contractors, volunteers or other people who are not covered under the ESA. A private considered an employee might be entitled to rights such as:

– base pay

– overtime pay

– public vacations

– vacation with pay

– notice of termination or termination pay

Under the ESA, employers are not enabled to deal with employees covered by the Act as if they are not employees. If an a worker in this way, a work standards officer can issue a notification of conflict that leads to a penalty, a prosecution or both versus the employer.

Please note, the ESA provides minimum requirements only. Some employees may have greater rights under a work agreement, cumulative contract, the common law or other legislation.

Find out more about employee rights under the ESA.

How to inform who is an employee

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 might be thought about an employee under the ESA when at least a few of the following explains the relationship:

– the work the individual performs is a vital part of business

– business chooses:- what the individual is to do

– how much the person will be paid

– where and when the work is carried out

If you’re not sure who is a staff member under the ESA, call the Ministry of Labour, Immigration, employment 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 information about who is an employee however can not provide suggestions.

If you’re still not sure whether someone is an employee, please speak with a legal representative.

How to inform who is an independent specialist

An independent professional is someone who stays in business on their own. A person may be considered an independent contractor, and not covered by the ESA, when a minimum of a few of the following uses:

– business can end the person’s contract for services, however can not discipline the person

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

– identifies how, when or where the work is performed

– chooses whether to farm out a few of the work

Example

Fariah works as a customer support agent for employment a sales company. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service’s office. She uses the company’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 specifies that she is an independent contractor and so she does not get overtime pay, trip pay or public vacation pay.

Fariah thinks she may in fact be a staff member and may be entitled to overtime pay, trip pay and public vacation pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.

A work standards officer examines her claim. The officer looks at the relationship in between Fariah and the sales business and finds that she is a staff member

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

The work standards officer orders the sales organization to:

– pay Fariah the overtime pay, getaway pay and public vacation 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 misunderstandings

An individual may be considered a worker even if:

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

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

– submits invoices to business.

– utilizes their own car for work functions.

Volunteers

Volunteers are not staff members under the ESA. However, the reality that somebody is called a “volunteer” does not figure out whether that person is a staff member and employment entitled to the defenses of the ESA.

The main factors that figure out whether someone is a volunteer or an employee are how much:

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

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

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

If the person is supplying services to the family, instead of services in pursuit of a living, that individual is most likely to be a volunteer.

The fact that no salaries were paid does not necessarily suggest that somebody is a volunteer. The truth that there was some form of payment does not always imply somebody is an employee. For example, an honorarium might have been paid, instead of wages.