5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) applies to employees.

A worker includes an individual who:

– carries out work for a company for incomes

– supplies services to an employer for wages

– receives training from an employer, if the ability in which the person is being trained is an ability utilized by the employer’s staff members

– is a homeworker

– was an employee

Effective March 21, 2024, an employee includes an individual who carries out work throughout a trial period for a company, if the skills being evaluated throughout the trial period are abilities used by the company’s employees or might be utilized by employees if there are no other staff members. For job instance, where an employer of a restaurant asks a job prospect to work a trial shift waiting tables to show their capability to perform the job, even where no employment offer has been made to that candidate, the individual is a staff member under the ESA.

The ESA does not use to independent specialists, volunteers or other people who are not covered under the ESA. An individual considered a staff member might be entitled to rights such as:

– base pay

– overtime pay

– public vacations

– getaway with pay

– notice of termination or termination pay

Under the ESA, companies are not permitted to treat employees covered by the Act as if they are not staff members. If an employer misclassifies an employee in this way, an employment standards officer can provide a notification of contravention that results in a charge, a prosecution or both versus the employer.

Please note, the ESA provides minimum requirements just. Some employees may have greater rights under a work agreement, collective agreement, the common law or other legislation.

Learn more about employee rights under the ESA.

How to inform who is a worker

The relationship between a specific and the service (or individual) they are working for identifies whether the person is an employee and entitled to defenses under the ESA. An individual might be considered a worker under the ESA when a minimum of some of the following describes the relationship:

– the work the individual carries out is an essential part of business

– the business 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 worker under the ESA, call the Ministry of Labour, Immigration, Training and Employment Standards Information Centre at:

– 416-326-7160

– toll-free at 1-800-531-5551

TTY 1-866-567-8893

The Information Centre can help callers in several languages. They can offer basic info about who is a worker but can not provide suggestions.

If you’re still uncertain whether somebody is an employee, please speak with an attorney.

How to tell who is an independent contractor

An independent specialist 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 a few of the following applies:

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

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

– identifies how, when or where the work is performed

– decides whether to subcontract some of the work

Example

Fariah works as a customer support representative for a sales service. 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 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 poor efficiency. Her employment contract specifies that she is an independent professional and job so she does not get overtime pay, vacation pay or public vacation pay.

Fariah believes she might really be a staff member and might be entitled to overtime pay, holiday pay and job public holiday 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 a staff member

It does not matter that Fariah signed the work contract stating that she is an independent specialist since the realities show she is an employee.

The employment standards officer orders the sales company to:

– pay Fariah the overtime pay, trip pay and public holiday pay that she was entitled to as a staff member.

– orders the company to issue wage statements and keep records

Employee or independent contractor: Common misconceptions

An individual might be considered a staff member even if:

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

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

– submits billings to the organization.

– uses their own vehicle for work functions.

Volunteers

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

The primary elements that identify whether somebody is a volunteer or a worker are how much:

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

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

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

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

The reality that no wages were paid does not always indicate that someone is a volunteer. The reality that there was some form of payment does not necessarily imply somebody is an employee. For example, an honorarium may have been paid, rather than salaries.