5:00 P.m. in the Business’s Office

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

A staff member consists of an individual who:

– performs work for a company for salaries

– products services to an employer for earnings

– gets training from an employer, if the skill in which the individual is being trained is a skill utilized by the employer’s staff members

– is a homeworker

– was an employee

Effective March 21, 2024, a staff member includes a person who carries out work during a trial period for a company, if the abilities being evaluated during the trial period are skills utilized by the employer’s employees or could be utilized by staff members if there are no other staff members. For instance, where a company of a restaurant asks a job prospect to work a trial shift waiting tables to demonstrate their capability to carry out the job, even where no employment deal has actually 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 considered a worker may be entitled to rights such as:

– minimum wage

– overtime pay

– public vacations

– getaway with pay

– notice 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 a staff member in this way, an employment requirements officer can provide a notice of breach that results in a charge, a prosecution or both versus the company.

Please note, the ESA minimum requirements just. Some workers may have greater rights under an employment agreement, cumulative arrangement, the common law or other legislation.

Find out more about staff member rights under the ESA.

How to tell who is an employee

The relationship between a private and business (or person) they are working for figures out whether the person is a staff member and entitled to protections under the ESA. An individual might be thought about a worker under the ESA when a minimum of a few of the following explains the relationship:

– the work the individual performs is an important part of the organization

– the company 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 uncertain 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 several languages. They can offer basic info about who is a worker but can not offer guidance.

If you’re still uncertain whether somebody is a worker, please talk with a lawyer.

How to inform who is an independent specialist

An independent specialist is someone who is in business for themselves. A person might be considered an independent professional, and not covered by the ESA, when at least a few of the following applies:

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

– the individual:- has the chance to earn a profit and has a threat of losing money from the work

– figures out how, when or where the work is performed

– chooses whether to farm out a few of the work

Example

Fariah works as a customer care representative for a sales organization. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s workplace. She uses business’s telephones and computers. She is paid $25.50 per hour. Her employment agreement 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 and so she does not get overtime pay, vacation pay or public vacation pay.

Fariah thinks she may actually be an employee 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.

An employment standards officer investigates her claim. The officer looks at the relationship in between Fariah and the sales business and discovers that she is a staff member

It does not matter that Fariah signed the employment agreement stating that she is an independent professional because the facts reveal she is a staff member.

The employment standards officer orders the sales service to:

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

– orders the employer to provide wage statements and keep records

Employee or independent contractor: Common mistaken beliefs

A person may be thought about an employee even if:

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

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

– sends billings to the business.

– uses their own car for work purposes.

Volunteers

Volunteers are not employees under the ESA. However, job the truth that someone is called a ”volunteer” does not identify whether that person is a worker and entitled to the protections of the ESA.

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

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

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

In family-run services, the question will often be whether the person is supplying 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, that person is most likely to be a volunteer.

The fact that no salaries were paid does not always mean that somebody is a volunteer. The fact that there was some type of payment does not necessarily mean somebody is a staff member. For example, job an honorarium might have been paid, instead of salaries.