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 a company for earnings
– supplies services to an employer for incomes
– receives training from an employer, if the ability in which the person is being trained is a skill used by the employer’s staff members
– is a homeworker
– was an employee
Effective March 21, 2024, an employee consists of an individual who carries out work throughout a trial duration for an employer, if the abilities being assessed throughout the trial period are abilities utilized by the company’s workers or might be used by employees if there are no other workers. For example, where a company of a dining establishment asks a job prospect to work a trial shift waiting tables to demonstrate their ability to carry out the job, even where no work deal has been made to that candidate, the person is a worker under the ESA.
The ESA does not apply to independent specialists, employment volunteers or other people who are not covered under the ESA. A specific thought about an employee might be entitled to rights such as:
– minimum wage
– overtime pay
– public vacations
– getaway with pay
– notification of termination or termination pay
Under the ESA, employers are not enabled to treat employees covered by the Act as if they are not employees. If an employer misclassifies a worker in this way, a work standards officer can provide a notice of conflict that leads to a charge, a prosecution or both versus the company.
Please note, the ESA provides minimum requirements only. Some employees may have greater rights under an employment agreement, collective agreement, employment the common law or other legislation.
Find out more about employee rights under the ESA.
How to inform who is a staff member
The relationship between a specific and business (or individual) they are working for identifies whether the person is an employee and employment entitled to defenses under the ESA. A person may be thought about a staff member under the ESA when a minimum of some of the following describes the relationship:
– the work the specific carries out is a fundamental part of business
– business chooses:- what the individual is to do
– just how much the person will be paid
– where and when the work is performed
If you’re not sure 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 several languages. They can offer basic info about who is an employee however can not provide guidance.
If you’re still uncertain whether somebody is an employee, please speak to an attorney.
How to tell who is an independent specialist
An independent contractor is someone who is in service for themselves. A person might be thought about an independent professional, and not covered by the ESA, when at least some of the following uses:
– business can end the person’s contract for services, however can not discipline the person
– the individual:- has the opportunity to make a revenue and has a risk of losing money from the work
– figures out how, when or where the work is performed
whether to farm out some 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 business’s workplace. She uses the service’s telephones and computer systems. She is paid $25.50 per hour. Her work contract does not have an end date, although her company can fire or discipline her for bad efficiency. Her employment agreement states that she is an independent contractor and so she does not get overtime pay, getaway pay or public holiday pay.
Fariah believes she might really be a worker and employment might be entitled to overtime pay, getaway pay and public vacation pay. She files a claim with the Ministry of Labour, Immigration, Training and Skills Development.
An employment standards officer examines 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 employment contract mentioning that she is an independent specialist because the realities reveal 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 an employee.
– orders the employer to issue wage statements and keep records
Employee or independent professional: Common misconceptions
An individual might be thought about a staff member even if:
– the specific and the company agree (orally or employment in composing) that the person is an independent specialist. It is the relationship in between the specific and employment business (or person) that matters, not the label that is provided to it
– the person:- charges the balanced sales tax (HST).
– submits invoices to business.
– uses their own vehicle for work purposes.
Volunteers
Volunteers are not staff members under the ESA. However, the reality that someone is called a „volunteer“ does not determine whether that individual is an employee and entitled to the defenses of the ESA.
The main aspects that identify whether someone is a volunteer or a staff member are just how much:
– business (or individual) benefits from the person’s services.
– the individual views the plan as being in pursuit of a living.
In family-run companies, the question will often be whether the person is offering services in pursuit of a living or in service of the household.
If the individual is offering services to the family, employment rather than services in pursuit of a living, that individual is most likely to be a volunteer.
The truth that no wages were paid does not necessarily indicate that somebody is a volunteer. The truth that there was some form of payment does not necessarily indicate someone is an employee. For example, an honorarium might have been paid, rather than earnings.