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The Employment Standards Act (ESA) applies to employees.
A staff member includes an individual who:
– carries out work for an employer for wages
– supplies services to an employer for incomes
– receives training from a company, if the skill in which the individual is being trained is an ability utilized by the company’s workers
– is a homeworker
– was a staff member
Effective March 21, 2024, a worker consists of an individual who carries out work throughout a trial duration for an employer, if the abilities being evaluated throughout the trial period are abilities utilized by the employer’s staff members or could be utilized by employees if there are no other staff members. For example, where a company of a restaurant asks a job prospect to work a trial shift waiting tables to show their capability to carry out the job, even where no work offer has actually been made to that prospect, the person is an employee under the ESA.
The ESA does not use to independent professionals, referall.us volunteers or other people who are not covered under the ESA. An individual thought about an employee may be entitled to rights such as:
– base pay
– overtime pay
– public vacations
– holiday with pay
– notification of termination or termination pay
Under the ESA, employers are not enabled to treat staff members covered by the Act as if they are not staff members. If a company misclassifies an employee in this method, an employment standards officer can release a notification of contravention that results in a charge, a prosecution or both versus the company.
Please note, the ESA offers minimum requirements just. Some workers might have higher rights under a work agreement, cumulative agreement, the common law or other .
Learn more about staff member rights under the ESA.
How to tell who is a staff member
The relationship in between a specific and the company (or individual) they are working for determines whether the individual is an employee and entitled to defenses under the ESA. An individual might be thought about a worker under the ESA when a minimum of some of the following explains the relationship:
– the work the individual carries out is an important part of business
– the 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 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 offer general details about who is a worker however can not offer recommendations.
If you’re still uncertain whether somebody is an employee, please speak to an attorney.
How to inform who is an independent contractor
An independent specialist is someone who stays in business for themselves. A person might be considered an independent specialist, and not covered by the ESA, when a minimum of some of the following uses:
– the service can end the person’s agreement for services, however can not discipline the person
– the individual:- has the chance to earn a profit and has a danger of losing money from the work
– determines how, when or where the work is performed
– chooses whether to subcontract a few of the work
Example
Fariah works as a client service agent for a sales organization. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s workplace. She uses business’s telephones and computer systems. She is paid $25.50 per hour. Her employment contract does not have an end date, although her employer can fire or discipline her for poor efficiency. Her work agreement mentions that she is an independent specialist therefore she does not get overtime pay, holiday pay or public holiday pay.
Fariah thinks she may in fact be a worker and might be entitled to overtime pay, trip pay and public vacation pay. She files a claim with the Ministry of Labour, Immigration, Training and Skills Development.
A work standards officer investigates her claim. The officer takes a look at the relationship between Fariah and the sales service and discovers that she is a staff member
It does not matter that Fariah signed the employment agreement stating that she is an independent contractor due to the fact that the facts reveal she is a staff member.
The employment standards officer orders the sales company to:
– pay Fariah the overtime pay, vacation pay and public vacation pay that she was entitled to as a staff member.
– orders the employer to release wage statements and keep records
Employee or independent contractor: Common mistaken beliefs
A person might be considered a worker even if:
– the specific and the service agree (orally or in writing) that the person is an independent specialist. It is the relationship in between the individual and business (or individual) that matters, not the label that is offered to it
– the individual:- charges the harmonized sales tax (HST).
– submits invoices to business.
– utilizes their own lorry for work purposes.
Volunteers
Volunteers are not staff members under the ESA. However, the reality that somebody is called a „volunteer“ does not figure out whether that person is a worker and entitled to the defenses of the ESA.
The main elements that identify whether someone is a volunteer or a staff member are just how much:
– business (or person) take advantage of the person’s services.
– the specific views the plan as remaining in pursuit of a living.
In family-run businesses, 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 providing services to the family, rather than services in pursuit of a living, that individual is more likely to be a volunteer.
The fact that no wages were paid does not necessarily suggest that somebody is a volunteer. The fact that there was some type of payment does not always suggest somebody is a worker. For instance, an honorarium might have been paid, instead of salaries.
