5:00 P.m. in the Business’s Office

The Employment Standards Act (ESA) applies to employees.

A worker includes an individual who:

– performs work for a company for salaries

– supplies services to an employer for incomes

– gets training from a company, if the ability in which the person is being trained is an ability utilized by the company’s employees

– is a homeworker

– was a staff member

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

The ESA does not apply to independent specialists, volunteers or other individuals who are not covered under the ESA. A specific thought about a worker may be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– getaway 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 workers. If a company misclassifies a worker in this way, a work standards officer can release a notification of breach that results in a penalty, a prosecution or both against the employer.

Please note, the ESA offers minimum standards just. Some staff members might have higher rights under an employment agreement, cumulative contract, the typical law or other legislation.

Discover more about staff member rights under the ESA.

How to inform who is an employee

The relationship between a specific and business (or individual) they are working for determines whether the person is a staff member and entitled to defenses under the ESA. A person may be thought about a worker under the ESA when at least a few of the following explains the relationship:

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

– business chooses:- what the individual is to do

– how much the person will be paid

– where and when the work is carried out

If you’re not sure 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 basic details about who is an employee however can not supply suggestions.

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

How to tell who is an independent professional

An independent professional is someone who is in service for themselves. An individual may be thought about an independent contractor, and not covered by the ESA, when at least some of the following applies:

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

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

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

– chooses whether to subcontract some of the work

Example

Fariah works as a customer care representative for a sales business. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business’s workplace. She utilizes business’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 bad efficiency. Her employment agreement specifies that she is an independent professional therefore she does not receive overtime pay, vacation pay or public vacation pay.

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

A work standards officer examines her claim. The officer looks at the relationship in between Fariah and the sales service 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 since the truths show she is a worker.

The work standards officer orders the sales service to:

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

– orders the employer to release wage declarations and keep records

Employee or independent professional: Common misconceptions

An individual may be thought about an employee even if:

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

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

– sends invoices to business.

– uses their own car for employment work functions.

Volunteers

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

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

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

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

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

If the person is offering services to the household, instead of services in pursuit of a living, that individual is more likely to be a volunteer.

The truth that no wages were paid does not necessarily imply that somebody is a volunteer. The truth that there was some kind of payment does not always indicate someone is a staff member. For example, an honorarium might have been paid, rather than salaries.