5:00 P.m. in the Business’s Office

The Employment Standards Act (ESA) applies to employees.

A staff member consists of an individual who:

– carries out work for a company for salaries

– supplies services to a company for incomes

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

– is a homeworker

– was an employee

Effective March 21, 2024, a staff member consists of a person who performs work throughout a trial duration for a company, if the skills being assessed throughout the trial period are skills used by the company’s staff members or might be used by employees if there are no other employees. For instance, where an employer of a restaurant asks a job prospect to work a trial shift waiting tables to show their ability to perform the task, even where no employment deal has actually been made to that candidate, the person is a staff member under the ESA.

The ESA does not use to independent specialists, volunteers or employment other individuals who are not covered under the ESA. A specific thought about a worker might be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– vacation with pay

– notice of termination or termination pay

Under the ESA, companies are not allowed to deal with employees covered by the Act as if they are not employees. If a company misclassifies a staff member in this method, an employment requirements officer can release a notification of contravention that leads to a charge, a prosecution or both against the employer.

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

Learn more about worker rights under the ESA.

How to tell who is a worker

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

– the work the specific performs is an important part of business

– the business decides:- 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 an employee under the ESA, call the Ministry of Labour, employment 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 multiple languages. They can provide general info about who is a worker but can not supply suggestions.

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

How to tell who is an independent contractor

An independent contractor is someone who is in company on their own. An individual might be considered an contractor, and not covered by the ESA, when a minimum of a few of the following applies:

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

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

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

– decides whether to subcontract some of the work

Example

Fariah works as a customer care agent for a sales organization. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s office. She uses the 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 employment discipline her for poor performance. Her employment agreement states that she is an independent contractor and so she does not receive overtime pay, employment vacation pay or public holiday pay.

Fariah thinks she may actually be an employee 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 standards officer examines her claim. The officer takes a look at the relationship between Fariah and the sales service and finds that she is an employee

It does not matter that Fariah signed the employment contract specifying that she is an independent professional due to the fact that the truths reveal she is a worker.

The employment requirements officer orders the sales service to:

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

– orders the company to provide wage statements and keep records

Employee or independent contractor: Common misunderstandings

A person might be considered an employee even if:

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

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

– submits billings to the company.

– utilizes their own lorry for work functions.

Volunteers

Volunteers are not employees under the ESA. However, the reality that somebody is called a “volunteer” does not determine whether that individual is a staff member and entitled to the protections of the ESA.

The primary aspects that identify whether somebody is a volunteer or an employee are how much:

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

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

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

If the individual is providing services to the household, 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 someone is a volunteer. The fact that there was some type of payment does not necessarily mean somebody is a worker. For example, an honorarium may have been paid, instead of incomes.