5:00 P.m. in the Business’s Office

The Employment Standards Act (ESA) applies to employees.

An employee includes a person who:

– performs work for an employer for incomes

– supplies services to an employer for earnings

– receives training from a company, if the ability in which the individual is being trained is a skill utilized by the employer’s workers

– is a homeworker

– was an employee

Effective March 21, 2024, a staff member consists of a person who performs work throughout a trial period for an employer, if the abilities being evaluated during the trial period are skills utilized by the employer’s workers or might be utilized by employees if there are no other workers. For instance, where an employer of a dining establishment asks a task prospect to work a trial shift waiting tables to show their capability to perform the task, even where no work offer has been made to that candidate, employment the individual is a staff member under the ESA.

The ESA does not use to independent professionals, volunteers or other people who are not covered under the ESA. An individual considered an employee may be entitled to rights such as:

– minimum wage

– overtime pay

– public vacations

– trip with pay

– notice of termination or termination pay

Under the ESA, employers are not allowed to deal with workers covered by the Act as if they are not staff members. If a company misclassifies a worker in this method, an employment standards officer can issue a notification of breach that leads to a penalty, a prosecution or both against the employer.

Please note, the ESA provides minimum requirements only. Some staff members might have higher rights under a work contract, collective contract, employment the common law or other legislation.

Learn more about staff member rights under the ESA.

How to inform who is a staff member

The relationship in between a specific and business (or person) they are working for identifies whether the individual is a worker and entitled to protections under the ESA. A person might be considered a worker under the ESA when a minimum of some of the following explains the relationship:

– the work the private performs is an essential part of the organization

– the business chooses:- what the person is to do

– just how much the individual will be paid

– where and when the work is out

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

If you’re still not sure whether someone is an employee, please speak with a lawyer.

How to inform who is an independent professional

An independent contractor is somebody who is in organization on their own. A person might be considered an independent professional, 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 person

– the individual:- has the opportunity to make an earnings and has a danger of losing cash from the work

– determines how, when or where the work is performed

– decides 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 the organization’s workplace. She utilizes the service’s telephones and computers. 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 states that she is an independent professional therefore she does not get overtime pay, holiday pay or public vacation pay.

Fariah thinks she may actually be a worker and might be entitled to overtime pay, trip pay and public vacation pay. She sues with the Ministry of Labour, Immigration, employment Training and Skills Development.

An employment requirements officer investigates her claim. The officer looks at the relationship between Fariah and the sales service and finds that she is an employee

It does not matter that Fariah signed the employment agreement stating that she is an independent contractor since the truths show she is a staff member.

The work requirements officer orders the sales organization to:

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

– orders the company to issue wage declarations and keep records

Employee or independent professional: Common misconceptions

A person might be considered a staff member even if:

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

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

– sends invoices to the company.

– uses their own vehicle for work functions.

Volunteers

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

The main factors that figure out whether somebody is a volunteer or a staff member are just how much:

– business (or individual) take advantage of the individual’s services.

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

In family-run companies, the concern will often be whether the individual is supplying 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 most likely to be a volunteer.

The fact that no salaries were paid does not always indicate that somebody is a volunteer. The fact that there was some kind of payment does not always indicate somebody is a worker. For example, an honorarium may have been paid, instead of earnings.