5:00 P.m. in Business’s Office

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

An employee includes a person who:

– performs work for a company for wages

– supplies services to an employer for salaries

– gets training from a company, if the ability in which the person is being trained is an ability utilized by the company’s workers

– is a homeworker

– was an employee

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

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

– base pay

– overtime pay

– public holidays

– holiday with pay

– notice of termination or termination pay

Under the ESA, companies are not allowed to deal with staff members by the Act as if they are not staff members. If a company misclassifies a worker in this method, an employment requirements officer can provide a notice of contravention that leads to a charge, referall.us a prosecution or both against the company.

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

Find out more about worker rights under the ESA.

How to tell who is a worker

The relationship in between a specific and the company (or person) they are working for determines whether the person is an employee and entitled to protections under the ESA. An individual may be considered a worker under the ESA when a minimum of a few of the following describes the relationship:

– the work the private carries out is an essential part of business

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

– how much the individual 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, 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 numerous languages. They can give basic details about who is a worker but can not provide recommendations.

If you’re still unsure whether someone is an employee, please talk to an attorney.

How to tell who is an independent specialist

An independent specialist is somebody who stays in business for themselves. A person might be thought about an independent contractor, and not covered by the ESA, when a minimum of a few of the following applies:

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

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

– determines how, when or where the work is performed

– chooses whether to subcontract some of the work

Example

Fariah works as a consumer service agent for a sales business. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business’s workplace. She uses the business’s telephones and computers. She is paid $25.50 per hour. Her employment contract does not have an end date, although her employer can fire or discipline her for bad performance. Her employment agreement mentions that she is an independent specialist and so she does not get overtime pay, holiday pay or public vacation pay.

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

A work requirements officer examines her claim. The officer takes a look at the relationship between Fariah and the sales organization and finds that she is a staff member

It does not matter that Fariah signed the employment agreement specifying that she is an independent professional because the realities reveal she is a staff member.

The employment standards officer orders the sales business to:

– pay Fariah the overtime pay, trip 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 specialist: Common mistaken beliefs

A person might be considered an employee even if:

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

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

– sends invoices to the company.

– uses their own lorry 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 an employee and entitled to the protections of the ESA.

The primary aspects that figure out whether someone is a volunteer or a staff member are how much:

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

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

In family-run organizations, the concern will frequently 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 more likely to be a volunteer.

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