5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) uses to workers.

A staff member includes an individual who:

– carries out work for an employer for incomes

– supplies services to an employer for incomes

– receives training from a company, if the skill in which the person is being trained is an ability used by the employer’s workers

– is a homeworker

– was a staff member

Effective March 21, 2024, a worker consists of a person who performs work during a trial period for an employer, if the abilities being examined during the trial duration are skills utilized by the company’s staff members or could be used by workers if there are no other workers. For example, where an employer of a restaurant asks a job prospect to work a trial shift waiting tables to show their ability to carry out the task, even where no employment deal has been made to that prospect, the person is a worker under the ESA.

The ESA does not apply to independent professionals, volunteers or other people who are not covered under the ESA. A specific thought about a staff member might 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 deal with staff members 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 conflict that results in a charge, a prosecution or both versus the employer.

Please note, the ESA provides minimum requirements just. Some employees might have greater rights under an employment agreement, cumulative contract, the common law or other legislation.

Learn more about employee rights under the ESA.

How to inform who is an employee

The relationship between an individual and business (or person) they are working for figures out whether the person is an employee and entitled to under the ESA. An individual might be considered an employee under the ESA when at least some of the following explains the relationship:

– the work the specific performs is an essential 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 performed

If you’re not sure who is a staff member under the ESA, call the Ministry of Labour, Immigration, Training and employment 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 numerous languages. They can give general info about who is an employee however can not supply suggestions.

If you’re still uncertain whether somebody is a staff member, please speak to a lawyer.

How to inform who is an independent contractor

An independent specialist is someone who is in business on their own. A person may be thought about an independent contractor, and not covered by the ESA, when at least a few of the following applies:

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

– the person:- has the opportunity to make an earnings and has a danger of losing cash 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 support agent for a sales service. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the company’s office. She utilizes the service’s telephones and employment computers. 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 poor efficiency. Her employment contract specifies that she is an independent specialist and so she does not get overtime pay, employment vacation pay or public vacation pay.

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

A work standards officer investigates her claim. The officer looks at the relationship in between Fariah and employment the sales company and finds that she is a staff member

It does not matter that Fariah signed the employment agreement stating that she is an independent specialist because the facts show she is an employee.

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 a worker.

– orders the company to provide wage statements and keep records

Employee or independent professional: Common misconceptions

A person might be considered a staff member even if:

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

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

– sends billings to business.

– uses their own automobile for employment work purposes.

Volunteers

Volunteers are not workers under the ESA. However, the reality that somebody is called a “volunteer” does not figure out whether that individual is a staff member and entitled to the defenses of the ESA.

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

– the organization (or person) advantages from the person’s services.

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

In family-run services, the question will frequently be whether the individual is offering services in pursuit of a living or in service of the household.

If the person is supplying services to the household, rather than services in pursuit of a living, that person is most likely to be a volunteer.

The truth that no wages were paid does not always imply that somebody is a volunteer. The fact that there was some form of payment does not necessarily imply somebody is a staff member. For instance, an honorarium may have been paid, instead of wages.