5:00 P.m. in the Business’s Office

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

A worker includes an individual who:

– performs work for a company for earnings

– supplies services to a company for incomes

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

– is a homeworker

– was an employee

Effective March 21, 2024, an employee consists of a person who carries out work throughout a trial duration for a company, if the skills being evaluated during the trial duration are skills used by the company’s workers or might be utilized by workers if there are no other workers. For instance, where a company of a dining establishment asks a job prospect to work a trial shift waiting tables to demonstrate their capability to carry out the job, even where no employment offer has been made to that candidate, the individual is a staff member under the ESA.

The ESA does not use to independent contractors, volunteers or other individuals who are not covered under the ESA. A specific considered a worker may be entitled to rights such as:

– minimum wage

– overtime pay

– public vacations

– trip with pay

– notice of termination or termination pay

Under the ESA, companies are not enabled to treat employees covered by the Act as if they are not employees. If a company misclassifies a worker in this way, a work standards officer can issue a notice of contravention that results in a charge, a prosecution or both against the employer.

Please note, the ESA supplies minimum requirements just. Some staff members may have higher rights under a work contract, cumulative arrangement, the typical law or other legislation.

Find out more about employee rights under the ESA.

How to tell who is a staff member

The relationship in between an individual and the service (or individual) they are working for identifies whether the person is a staff member and entitled to under the ESA. A person may be thought about a staff member under the ESA when a minimum of a few of the following explains the relationship:

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

– the company chooses:- what the person is to do

– just how much the person will be paid

– where and when the work is performed

If you’re not sure who is a worker under the ESA, call the Ministry of Labour, Immigration, Training and referall.us 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 several languages. They can offer basic details about who is a staff member but can not offer suggestions.

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

How to inform who is an independent professional

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

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

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

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

– chooses whether to subcontract some of the work

Example

Fariah works as a client service agent for a sales company. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the organization’s office. She uses the service’s telephones and computer systems. She is paid $25.50 per hour. Her employment contract does not have an end date, although her company can fire or discipline her for bad efficiency. Her employment agreement specifies that she is an independent professional and so she does not receive overtime pay, holiday pay or public holiday pay.

Fariah thinks she may really be an employee and might be entitled to overtime pay, getaway pay and public vacation pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.

An employment standards officer examines her claim. The officer looks at the relationship between Fariah and the sales organization and discovers that she is a worker

It does not matter that Fariah signed the employment agreement mentioning that she is an independent professional since the realities show she is a worker.

The employment requirements officer orders the sales company to:

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

– orders the company to provide wage statements and keep records

Employee or independent specialist: Common mistaken beliefs

An individual might be considered a staff member even if:

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

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

– submits billings to business.

– uses their own automobile for work functions.

Volunteers

Volunteers are not employees under the ESA. However, the truth that somebody is called a “volunteer” does not identify whether that person 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 just how much:

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

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

In family-run organizations, the concern will often be whether the individual is offering services in pursuit of a living or in service of the family.

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

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