5:00 P.m. in Business’s Office

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

A worker includes an individual who:

– performs work for an employer for incomes

– products services to an employer for wages

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

– is a homeworker

– was a staff member

Effective March 21, 2024, a worker includes a person who carries out work during a trial period for a company, if the abilities being examined throughout the trial duration are skills utilized by the employer’s staff members or could be used by employees if there are no other employees. For example, where an employer of a dining establishment asks a task candidate to work a trial shift waiting tables to demonstrate their ability to carry out the task, even where no employment offer has been made to that prospect, the individual is a staff member under the ESA.

The ESA does not use to independent professionals, volunteers or other people who are not covered under the ESA. An individual considered a worker might be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– trip with pay

– notification of termination or termination pay

Under the ESA, employers are not enabled to treat workers covered by the Act as if they are not staff members. If an employer misclassifies an employee in this way, a work standards officer can provide a notice of contravention that leads to a penalty, a prosecution or both against the company.

Please note, the ESA supplies minimum requirements just. Some employees may have higher rights under an employment agreement, cumulative agreement, the typical law or other legislation.

Discover more about employee rights under the ESA.

How to inform who is a staff member

The relationship in between an individual and the business (or individual) they are working for determines whether the individual is a staff member and entitled to protections under the ESA. An individual might be considered an employee under the ESA when a minimum of some of the following explains the relationship:

– the work the specific carries out is an important part of business

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

– how much the individual will be paid

– where and when the work is carried out

If you’re unsure who is an employee 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 several languages. They can give general information about who is a staff member however can not offer recommendations.

If you’re still unsure whether someone is a worker, please talk to a lawyer.

How to inform who is an independent specialist

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

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

– the person:- has the opportunity to earn a profit and has a threat of losing cash from the work

– determines how, when or where the work is performed

– chooses whether to farm out a few of the work

Example

Fariah works as a client service agent for a sales service. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service’s office. She utilizes business’s telephones and computers. She is paid $25.50 per hour. Her work contract does not have an end date, although her company can fire or discipline her for poor efficiency. Her employment agreement specifies that she is an independent specialist therefore she does not get overtime pay, trip pay or public vacation pay.

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

An employment standards officer investigates her claim. The officer takes a look at the relationship in between Fariah and the sales service and finds that she is a staff member

It does not matter that Fariah signed the work agreement specifying that she is an independent professional due to the fact that the facts show she is an employee.

The employment standards officer orders the sales service to:

– pay Fariah the overtime pay, getaway pay and public holiday pay that she was entitled to as an employee.

– orders the employer to release wage statements and keep records

Employee or independent professional: Common misunderstandings

An individual might be thought about a staff member even if:

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

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

– sends billings to the organization.

– utilizes their own vehicle for work functions.

Volunteers

Volunteers are not staff members 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 primary factors that identify whether someone is a or employment a worker are just how much:

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

– the private views the plan as being 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 person is providing services to the household, instead of services in pursuit of a living, employment that person is most likely to be a volunteer.

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