5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) uses to employees.

A staff member includes an individual who:

– carries out work for a company for salaries

– products services to a company for earnings

– gets training from an employer, if the skill in which the person is being trained is a skill used by the company’s workers

– is a homeworker

– was a staff member

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

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

– base pay

– overtime pay

– public vacations

– trip with pay

– notice of termination or termination pay

Under the ESA, employers are not allowed to treat staff members covered by the Act as if they are not staff members. If an employer misclassifies a staff member in this way, a work standards officer can release a notice of breach that leads to a penalty, a prosecution or both against the employer.

Please note, the ESA offers minimum requirements only. Some staff members might have higher rights under an employment agreement, cumulative agreement, the common law or other legislation.

Find out more about staff member rights under the ESA.

How to tell who is a worker

The relationship between an individual and the business (or individual) they are working for identifies whether the individual is an employee and entitled to defenses under the ESA. A person might be thought about a worker under the ESA when at least some of the following describes the relationship:

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

– the company decides:- what the person is to do

– how much the individual will be paid

– where and when the work is performed

If you’re not sure 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 general information about who is a staff member but can not offer recommendations.

If you’re still unsure whether someone is a staff member, please speak to a lawyer.

How to inform who is an independent specialist

An independent specialist is somebody who is in organization 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 organization can end the person’s agreement for services, but can not discipline the person

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

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

– chooses whether to farm out some of the work

Example

Fariah works as a client service agent for a sales company. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s office. She utilizes business’s telephones and computer systems. She is paid $25.50 per hour. Her employment agreement does not have an end date, although her company can fire or discipline her for bad performance. Her employment agreement specifies that she is an independent professional and so she does not receive overtime pay, vacation pay or public holiday pay.

Fariah thinks she might in fact be a staff member and might be entitled to overtime pay, getaway pay and public vacation pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.

An employment standards officer examines her claim. The officer looks at the relationship in between Fariah and the and finds that she is a staff member

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

The work standards officer orders the sales company to:

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

– orders the employer to provide wage declarations and employment keep records

Employee or independent professional: Common mistaken beliefs

A person might be thought about an employee even if:

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

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

– sends billings to business.

– utilizes their own car for employment work purposes.

Volunteers

Volunteers are not workers under the ESA. However, the fact that someone is called a “volunteer” does not identify whether that person is an employee and entitled to the defenses of the ESA.

The main factors that determine whether someone is a volunteer or a worker are just how much:

– business (or person) advantages from the person’s services.

– the specific views the arrangement as being in pursuit of a living.

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

If the person is supplying services to the family, instead of services in pursuit of a living, that person is more most likely to be a volunteer.

The truth that no salaries were paid does not always mean that somebody is a volunteer. The fact that there was some form of payment does not always suggest someone is a staff member. For example, an honorarium might have been paid, rather than earnings.