5:00 P.m. in Business's Office
The Employment Standards Act (ESA) uses to workers.
A staff member consists of a person who:
- carries out work for an employer for incomes
- products services to an employer for earnings
- gets training from a company, if the ability in which the person is being trained is a skill used by the company's staff members
- is a homeworker
- was a staff member
Effective March 21, 2024, an employee includes a person who performs work throughout a trial period for a company, if the skills being assessed throughout the trial duration are skills used by the employer's employees or could be used by employees if there are no other employees. For example, where a company of a restaurant asks a task candidate to work a trial shift waiting tables to demonstrate their capability to carry out the job, even where no work offer has actually been made to that prospect, the individual is an employee under the ESA.
The ESA does not apply to independent specialists, volunteers or other individuals who are not covered under the ESA. A specific thought about a staff member might be entitled to rights such as:
- base pay
pay
- public vacations
- getaway with pay
- notification of termination or termination pay
Under the ESA, companies are not permitted to treat employees covered by the Act as if they are not employees. If a company misclassifies a staff member in this method, a work standards officer can provide a notification of contravention that leads to a charge, referall.us a prosecution or both against the company.
Please note, the ESA provides minimum requirements just. Some staff members may have greater rights under an employment contract, collective agreement, the common law or other legislation.
Discover more about staff member rights under the ESA.
How to inform who is a staff member
The relationship between a specific and business (or person) they are working for determines whether the person is a worker and entitled to protections under the ESA. An individual may be considered an employee under the ESA when at least a few of the following explains the relationship:
- the work the individual carries out is an essential part of the service
- the service decides:- what the person is to do
- just 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 basic info about who is a worker but can not provide suggestions.
If you're still uncertain whether somebody is a worker, please speak to a legal representative.
How to inform who is an independent specialist
An independent specialist is somebody who is in business on their own. A person may be thought about an independent professional, and not covered by the ESA, when at least some of the following applies:
- the company can end the individual's agreement for services, however can not discipline the individual
- the individual:- has the chance to earn a profit and has a risk of losing cash from the work
- figures out how, when or where the work is carried out
- chooses whether to farm out some of the work
Example
Fariah works as a consumer service agent for a sales business. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's workplace. She uses the organization's telephones and computers. She is paid $25.50 per hour. Her work agreement does not have an end date, although her company can fire or discipline her for poor performance. Her work agreement states that she is an independent contractor therefore she does not receive overtime pay, getaway pay or public holiday pay.
Fariah believes she may in fact be a worker and might be entitled to overtime pay, vacation 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 the sales service and discovers that she is an employee
It does not matter that Fariah signed the employment agreement specifying that she is an independent contractor due to the fact that the truths reveal she is a staff member.
The employment standards officer orders the sales business to:
- pay Fariah the overtime pay, vacation pay and public holiday pay that she was entitled to as an employee.
- orders the employer to release wage declarations and keep records
Employee or independent professional: Common misconceptions
A person might be considered a worker even if:
- the individual and business concur (orally or in writing) that the person is an independent contractor. It is the relationship in between the private and the company (or person) that matters, not the label that is offered to it
- the person:- charges the balanced sales tax (HST).
- sends billings to business.
- utilizes their own car for work functions.
Volunteers
Volunteers are not workers under the ESA. However, the truth that somebody is called a "volunteer" does not determine whether that person is an employee and entitled to the securities of the ESA.
The main elements that determine whether someone is a volunteer or an employee are just how much:
- business (or individual) advantages from the individual's services.
- the individual views the plan as being in pursuit of a living.
In family-run organizations, the question will frequently be whether the person is supplying services in pursuit of a living or in service of the household.
If the person is providing services to the family, instead of services in pursuit of a living, that person is more likely to be a volunteer.
The reality that no wages were paid does not necessarily imply that someone is a volunteer. The truth that there was some type of payment does not necessarily indicate someone is a staff member. For example, an honorarium might have been paid, rather than earnings.
