5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) applies to employees.

A worker consists of an individual who:

– performs work for an employer for salaries

– materials services to an employer for incomes

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

– is a homeworker

– was a worker

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

The ESA does not apply to independent specialists, volunteers or other people who are not covered under the ESA. A specific considered an employee may be entitled to rights such as:

– minimum wage

– overtime pay

– public vacations

– trip with pay

– notification of termination or termination pay

Under the ESA, companies are not permitted to deal with workers covered by the Act as if they are not staff members. If a company misclassifies a worker in this way, an employment standards officer can release a notice of breach that leads to a charge, a prosecution or both against the employer.

Please note, the ESA supplies minimum requirements just. Some employees may have higher rights under an employment agreement, cumulative arrangement, the typical law or other legislation.

Learn more about worker rights under the ESA.

How to inform who is a worker

The relationship between a specific and employment business (or person) they are working for figures out whether the individual is a worker and entitled to defenses under the ESA. An individual might be considered a worker under the ESA when at least some of the following describes the relationship:

– the work the specific carries out is an important part of business

– business decides:- 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 multiple languages. They can provide general info about who is a staff member however can not offer suggestions.

If you’re still unsure whether somebody is a staff member, please talk with an attorney.

How to tell who is an independent specialist

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

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

– the person:- has the opportunity to earn a profit and has a risk of losing money from the work

– identifies how, when or where the work is performed

– decides whether to subcontract a few of the work

Example

Fariah works as a customer care representative for a sales service. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service’s workplace. She utilizes the company’s telephones and computer systems. 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 bad performance. Her employment agreement states that she is an independent contractor and so she does not get overtime pay, trip pay or public holiday pay.

Fariah thinks she might in fact be an employee and might be entitled to overtime pay, holiday pay and public holiday pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.

A work requirements officer examines her claim. The officer looks at the relationship between Fariah and the sales company and finds that she is a worker

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

The work standards officer orders the sales organization to:

– pay Fariah the overtime pay, holiday pay and public vacation pay that she was entitled to as a worker.

– orders the employer to issue wage statements and keep records

Employee or independent specialist: Common mistaken beliefs

A person may be considered a staff member even if:

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

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

– submits invoices to business.

– utilizes their own automobile for work functions.

Volunteers

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

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

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

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

In family-run services, the question will typically be whether the person is offering services in pursuit of a living or in service of the household.

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

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