5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) uses to workers.

An employee includes an individual who:

– performs work for an employer for incomes

– products services to a company for salaries

– receives 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, an employee includes an individual who performs work during a trial period for an employer, if the skills being evaluated throughout the trial duration are skills utilized by the employer’s staff members or could be used by staff members if there are no other employees. For example, where an employer of a restaurant asks a task candidate to work a trial shift waiting tables to show their capability to perform the job, even where no work offer has actually been made to that prospect, 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 specific considered a worker may be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– vacation with pay

– notice of termination or termination pay

Under the ESA, companies are not allowed to treat staff members covered by the Act as if they are not employees. If a company misclassifies a worker in this way, an employment standards officer can provide a notification of breach that leads to a charge, a prosecution or both against the employer.

Please note, the ESA offers minimum requirements just. Some employees may have higher rights under a work contract, cumulative contract, the common law or other legislation.

Discover more about worker rights under the ESA.

How to inform who is an employee

The relationship in between a private and business (or person) they are working for determines 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 a few of the following explains the relationship:

– the work the individual performs is a fundamental part of business

– business decides:- what the individual is to do

– how much the person will be paid

– where and when the work is performed

If you’re unsure who is an employee 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 help callers in multiple languages. They can offer general details about who is a staff member but can not supply recommendations.

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

How to inform who is an independent contractor

An independent specialist is someone who is in business for themselves. 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 individual’s contract for services, but can not discipline the individual

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

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

– decides whether to subcontract a few of the work

Example

Fariah works as a client service representative for a sales service. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the company’s office. She uses business’s telephones and computers. 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 poor efficiency. Her employment agreement states that she is an independent contractor and so she does not get overtime pay, holiday pay or public vacation pay.

Fariah believes she might in fact be an employee and may be entitled to overtime pay, employment trip pay and public vacation pay. She sues with the Ministry of Labour, employment Immigration, Training and employment Skills Development.

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

It does not matter that Fariah signed the work contract mentioning that she is an independent professional due to the fact that the facts reveal she is a staff member.

The employment standards officer orders the sales organization to:

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

– orders the employer to issue wage declarations and keep records

Employee or independent contractor: Common mistaken beliefs

An individual may be thought about a staff member even if:

– the individual and the business concur (orally or in composing) that the individual 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 harmonized sales tax (HST).

– submits billings to the business.

their own lorry for work functions.

Volunteers

Volunteers are not workers under the ESA. However, the truth that somebody is called a “volunteer” does not figure out whether that person is an employee and employment entitled to the defenses of the ESA.

The main factors that identify whether someone is a volunteer or a staff member are how much:

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

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

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

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

The fact that no wages were paid does not always indicate that someone is a volunteer. The fact that there was some type of payment does not always indicate somebody is an employee. For employment example, an honorarium may have been paid, employment instead of salaries.