5:00 P.m. in the Business’s Office

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

A worker includes a person who:

– performs work for a company for earnings

– materials services to an employer for salaries

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

– is a homeworker

– was a staff member

Effective March 21, 2024, an employee includes an individual who performs work during a trial duration for an employer, if the abilities being examined throughout the trial period are skills used by the company’s employees or might be used by workers if there are no other workers. For instance, 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 task, even where no work offer has been made to that candidate, the individual is a worker under the ESA.

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

– minimum wage

– overtime pay

– public holidays

– holiday with pay

– notification of termination or termination pay

Under the ESA, employers are not enabled to deal with staff members covered by the Act as if they are not workers. If an employer misclassifies a staff member in this way, a work requirements officer can provide a notification of contravention that results in a charge, a prosecution or both versus the company.

Please note, the ESA supplies minimum standards only. Some employees may have greater rights under an employment agreement, collective contract, employment the common law or other legislation.

Discover more about employee rights under the ESA.

How to inform who is an employee

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

– the work the specific performs is a vital part of the company

– business chooses:- what the person is to do

– just 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 help callers in several languages. They can offer general information about who is a staff member but can not offer advice.

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

How to inform who is an independent contractor

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

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

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

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

– chooses whether to subcontract a few of the work

Example

Fariah works as a client service agent for a sales organization. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s office. She uses business’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 employment bad efficiency. Her employment agreement mentions that she is an independent professional therefore she does not get overtime pay, getaway pay or pay.

Fariah thinks she may really be a worker and may be entitled to overtime pay, vacation pay and public vacation pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.

An employment requirements officer investigates her claim. The officer takes a look at the relationship between Fariah and the sales organization and finds that she is an employee

It does not matter that Fariah signed the work contract mentioning that she is an independent professional because the facts reveal she is a staff member.

The work requirements officer orders the sales service to:

– pay Fariah the overtime pay, holiday 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 specialist: Common misunderstandings

An individual might be thought about a worker even if:

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

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

– submits billings to the service.

– uses their own car for work purposes.

Volunteers

Volunteers are not employees 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 someone is a volunteer or an employee are how much:

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

– the individual views the arrangement as being 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 family.

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

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