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The Employment Standards Act (ESA) applies to employees.

A of a person who:

– carries out work for a company for earnings

– products services to an employer for wages

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

– is a homeworker

– was a staff member

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

The ESA does not use to independent professionals, volunteers or other individuals who are not covered under the ESA. A specific thought about a staff member may be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– getaway with pay

– notification of termination or termination pay

Under the ESA, employers are not allowed to deal with employees covered by the Act as if they are not staff members. If an employer misclassifies a worker in this method, a work requirements officer can provide a notice of conflict that leads to a charge, a prosecution or both versus the company.

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

Learn more about employee rights under the ESA.

How to tell who is a worker

The relationship in between a specific and the organization (or individual) they are working for determines whether the individual is an employee and entitled to protections under the ESA. An individual might be thought about an employee under the ESA when at least a few of the following describes the relationship:

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

– business chooses:- what the person is to do

– how much the person will be paid

– where and when the work is carried out

If you’re unsure 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 assist callers in multiple languages. They can offer general info about who is an employee but can not supply suggestions.

If you’re still not sure whether someone is an employee, please talk with a lawyer.

How to inform who is an independent contractor

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

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

– the person:- has the opportunity to make an earnings and has a danger of losing money from the work

– identifies how, when or where the work is performed

– decides whether to subcontract some of the work

Example

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

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

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

It does not matter that Fariah signed the work agreement stating that she is an independent professional since the facts show she is a staff member.

The employment requirements officer orders the sales organization to:

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

– orders the company to release wage declarations and keep records

Employee or independent contractor: Common misunderstandings

A person may be thought about a staff member even if:

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

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

– sends invoices to business.

– uses their own vehicle for work purposes.

Volunteers

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

The main aspects that determine whether somebody is a volunteer or a worker are just how much:

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

– the individual views the plan as being in pursuit of a living.

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

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

The reality that no salaries were paid does not necessarily suggest that somebody is a volunteer. The reality that there was some kind of payment does not always indicate somebody is a worker. For instance, an honorarium may have been paid, instead of wages.