5:00 P.m. in the Business’s Office

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

A staff member includes an individual who:

– carries out work for an employer for salaries

– supplies services to a company for earnings

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

– is a homeworker

– was a worker

Effective March 21, 2024, an employee consists of a person who carries out work throughout a trial duration for an employer, if the abilities being assessed throughout the trial period are abilities used by the company’s workers or could be utilized by workers if there are no other workers. For job example, where an employer of a dining establishment asks a job prospect to work a trial shift waiting tables to show their capability to perform the task, even where no employment deal has been made to that candidate, the individual is a worker under the ESA.

The ESA does not use to independent specialists, volunteers or other individuals who are not covered under the ESA. A specific considered a worker 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, companies are not allowed to treat employees covered by the Act as if they are not employees. If a company misclassifies a worker in this way, an employment standards officer can 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 might have greater rights under an employment agreement, cumulative contract, the common law or other legislation.

Discover more about worker rights under the ESA.

How to inform who is a worker

The relationship between a private and the service (or individual) they are working for job determines whether the individual is an employee and entitled to protections under the ESA. A person may be thought about an employee under the ESA when at least some of the following describes the relationship:

– the work the private carries out is an essential part of the organization

– business chooses:- what the individual is to do

– just how much the individual will be paid

– where and when the work is carried out

If you’re uncertain who is a worker 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 several languages. They can offer general info about who is a staff member however can not offer suggestions.

If you’re still not sure whether someone is a staff member, please talk to an attorney.

How to tell who is an independent specialist

An independent contractor is somebody who is in company on their own. An individual may be considered an independent professional, and not covered by the ESA, when at least some of the following uses:

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

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

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

– chooses whether to subcontract a few 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 business’s office. She uses business’s telephones and job computer systems. She is paid $25.50 per hour. Her work contract does not have an end date, although her employer can fire or discipline her for bad efficiency. Her employment agreement specifies that she is an independent professional therefore she does not receive overtime pay, vacation pay or public holiday pay.

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

A work standards officer examines her claim. The officer looks at the relationship in between Fariah and the sales company and finds that she is an employee

It does not matter that Fariah signed the employment agreement mentioning that she is an independent specialist because the truths show she is a worker.

The employment standards officer orders the sales organization to:

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

– orders the employer to issue wage statements and keep records

Employee or independent professional: Common misunderstandings

A person might be considered a worker even if:

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

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

– submits invoices to the company.

– uses their own automobile for work functions.

Volunteers

Volunteers are not staff members under the ESA. However, the fact that someone is called a “volunteer” does not figure out whether that individual is an employee and entitled to the defenses of the ESA.

The main aspects that figure out whether someone is a volunteer or an employee are how much:

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

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

In family-run businesses, the question will often be whether the individual is supplying services in pursuit of a living or in service of the family.

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

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