5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) applies to employees.

An employee includes a person who:

– performs work for an employer for salaries

– supplies services to a company for incomes

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

– is a homeworker

– was a worker

Effective March 21, 2024, an employee consists of a person who carries out work during a trial duration for a company, if the skills being assessed during the trial period are skills used by the employer’s employees or might be utilized by workers if there are no other employees. For example, where an employer of a restaurant asks a task prospect to work a trial shift waiting tables to demonstrate their capability to carry out the task, even where no employment offer has been made to that candidate, employment the person is a staff member under the ESA.

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

– base pay

– overtime pay

– public holidays

– holiday with pay

– notification of termination or termination pay

Under the ESA, companies are not enabled to treat employees covered by the Act as if they are not staff members. If a company misclassifies a staff member in this way, a work standards officer can issue a notice of breach that leads to a penalty, a prosecution or both against the company.

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

Discover more about employee rights under the ESA.

How to tell who is a worker

The relationship in between a private and business (or person) they are working for identifies whether the individual is an employee and entitled to securities under the ESA. An individual might be thought about a staff member under the ESA when at least some of the following explains the relationship:

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

decides:- what the person is to do

– how much the person will be paid

– where and when the work is carried out

If you’re uncertain who is an employee under the ESA, call the Ministry of Labour, Immigration, employment Training and Skills Development’s 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 several languages. They can provide basic information about who is a worker but can not offer advice.

If you’re still unsure whether somebody is a staff member, please speak to an attorney.

How to inform who is an independent specialist

An independent contractor is somebody who stays in business for themselves. An individual might be thought about an independent contractor, and not covered by the ESA, when a minimum of some of the following uses:

– the business can end the person’s agreement for services, however can not discipline the person

– the individual:- has the opportunity 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 some of the work

Example

Fariah works as a client service representative for a sales company. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business’s office. 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 performance. Her employment agreement specifies that she is an independent specialist therefore she does not receive overtime pay, trip pay or public vacation pay.

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

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

It does not matter that Fariah signed the employment agreement specifying that she is an independent professional because the realities reveal she is a staff member.

The work standards officer orders the sales organization to:

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

– orders the company to provide wage declarations and keep records

Employee or independent specialist: Common misunderstandings

A person may be thought about a staff member even if:

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

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

– sends billings to business.

– utilizes their own lorry for work purposes.

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 staff member and entitled to the protections of the ESA.

The main factors that determine whether somebody is a volunteer or an employee are how much:

– the company (or person) advantages from the person’s services.

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

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

If the individual is providing services to the household, instead of services in pursuit of a living, that individual is most likely to be a volunteer.

The reality that no incomes were paid does not always mean that somebody is a volunteer. The fact that there was some form of payment does not always indicate someone is a worker. For instance, an honorarium may have been paid, rather than earnings.