5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) applies to employees.

A worker includes a person who:

– performs work for a company for earnings

– supplies services to an employer for salaries

– gets training from an employer, if the ability in which the individual is being trained is an ability used by the employer’s staff members

– is a homeworker

– was an employee

Effective March 21, 2024, a staff member includes a person who performs work throughout a trial duration for an employer, if the skills being examined during the trial period are skills used by the company’s staff members or might be used by workers if there are no other employees. For example, where an employer of a dining establishment asks a job candidate to work a trial shift waiting tables to show their capability to carry out the job, even where no work deal has actually been made to that prospect, the individual is a worker under the ESA.

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

– minimum wage

– overtime pay

– public vacations

– holiday with pay

– notification of termination or termination pay

Under the ESA, employers are not permitted to treat workers covered by the Act as if they are not staff members. If an employer misclassifies a worker in this method, a work standards officer can release a notification of breach that leads to a penalty, a prosecution or both against the employer.

Please note, the ESA provides minimum standards only. Some employees may have higher rights under an employment contract, collective contract, 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 in between a private and the company (or person) they are working for figures out whether the individual is an employee and entitled to defenses under the ESA. A person might be considered a staff member under the ESA when at least some of the following explains the relationship:

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

– business 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 not sure who is an employee 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 provide general information about who is a worker however can not provide suggestions.

If you’re still unsure whether someone is an employee, please speak with a legal representative.

How to tell who is an independent professional

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

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

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

– figures out how, when or where the work is performed

– decides whether to subcontract a few of the work

Example

Fariah works as a customer care agent for a sales company. 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 computers. 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 job poor performance. Her employment agreement mentions that she is an independent professional therefore she does not get overtime pay, holiday pay or public vacation pay.

Fariah thinks she might actually be a staff member and may be entitled to overtime pay, getaway pay and public vacation pay. She sues 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 business and finds that she is a worker

It does not matter that Fariah signed the work contract stating that she is an independent specialist since the facts reveal she is a staff member.

The work requirements officer orders the sales organization to:

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

– orders the employer to release wage statements and keep records

Employee or independent contractor: Common mistaken beliefs

A person might be considered a worker even if:

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

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

– submits invoices to the organization.

– utilizes their own vehicle for work purposes.

Volunteers

Volunteers are not employees under the ESA. However, the truth that someone is called a “volunteer” does not determine whether that individual is a worker and entitled to the protections of the ESA.

The primary aspects that figure out whether somebody is a volunteer or a worker are how much:

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

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

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

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

The truth that no incomes were paid does not always suggest that someone is a volunteer. The reality that there was some form of payment does not necessarily mean somebody is a worker. For example, an honorarium may have been paid, rather than incomes.