5:00 P.m. in Business’s Office

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

A staff member includes a person who:

– carries out work for a company for wages

– supplies services to a company for earnings

– receives 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 a staff member

Effective March 21, 2024, a staff member consists of an individual who performs work during a trial period for a company, if the abilities being examined during the trial period are skills utilized by the employer’s workers or could be utilized by workers if there are no other employees. For instance, where a company of a restaurant asks a job candidate to work a trial shift waiting tables to demonstrate their capability to perform the job, even where no employment offer has been made to that prospect, the individual is an employee under the ESA.

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

– base pay

– overtime pay

– public vacations

– vacation with pay

– notification of termination or termination pay

Under the ESA, employers are not allowed to treat employees covered by the Act as if they are not employees. If a company misclassifies an employee in this method, an employment requirements officer can release a notice of conflict that leads to a penalty, a prosecution or both against the employer.

Please note, the ESA supplies minimum standards only. Some staff members may have greater rights under a work contract, collective contract, the common law or other legislation.

Find out more about employee rights under the ESA.

How to tell who is an employee

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

– the work the specific performs is a vital part of business

– business chooses:- what the individual is to do

– how much the person will be paid

– where and when the work is performed

If you’re uncertain 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 provide basic details about who is a staff member but can not offer recommendations.

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

How to tell who is an independent contractor

An independent professional is somebody who stays in business for themselves. An individual may be considered an independent contractor, and not covered by the ESA, when at least a few of the following uses:

– business can end the person’s agreement for services, however can not discipline the person

– the individual:- has the opportunity to make a revenue and employment has a danger of losing money from the work

– identifies how, when or where the work is carried out

– decides whether to subcontract a few of the work

Example

Fariah works as a customer care agent for a sales business. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business’s workplace. She utilizes the business’s telephones and computers. She is paid $25.50 per hour. Her work does not have an end date, although her employer can fire or discipline her for poor performance. Her employment agreement specifies that she is an independent professional therefore she does not receive overtime pay, trip pay or public vacation pay.

Fariah thinks she may really be a worker and might be entitled to overtime pay, trip pay and employment public holiday pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.

A work requirements officer investigates her claim. The officer looks at the relationship between Fariah and employment the sales company and discovers 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 realities reveal she is an employee.

The work requirements officer orders the sales service to:

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

– orders the company to provide wage statements and keep records

Employee or independent professional: Common misconceptions

An individual may be thought about a worker even if:

– the individual and the company agree (orally or in composing) that the individual is an independent contractor. It is the relationship between the individual and the business (or individual) that matters, not the label that is offered to it

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

– sends billings to the organization.

– uses their own vehicle for work purposes.

Volunteers

Volunteers are not staff members under the ESA. However, the reality that someone is called a “volunteer” does not identify whether that person is an employee and entitled to the securities of the ESA.

The main factors that determine whether somebody is a volunteer or an employee are how much:

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

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

In family-run businesses, the question will frequently be whether the person is providing services in pursuit of a living or in service of the family.

If the person is offering services to the household, employment instead of services in pursuit of a living, that person is most likely to be a volunteer.

The truth that no earnings were paid does not always mean that somebody is a volunteer. The truth that there was some type of payment does not always mean someone is an employee. For instance, employment an honorarium might have been paid, rather than wages.