5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) applies to workers.

A worker consists of a person who:

– performs work for a company for wages

– supplies services to a company for salaries

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

– is a homeworker

– was an employee

Effective March 21, 2024, a worker consists of an individual who carries out work during a trial period for an employer, if the abilities being evaluated during the trial period are abilities used by the company’s workers or might be utilized by employees if there are no other staff members. For instance, employment where an employer of a dining establishment asks a task prospect to work a trial shift waiting tables to demonstrate their ability to carry out the task, even where no work offer has actually been made to that prospect, the person is an employee under the ESA.

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

– base pay

– overtime pay

– public holidays

– holiday with pay

– notification of termination or termination pay

Under the ESA, employers are not enabled to deal with employees covered by the Act as if they are not workers. If an employer misclassifies an employee in this method, a work standards officer can issue a notification of contravention that leads to a penalty, a prosecution or both versus the employer.

Please note, the ESA offers minimum standards only. Some staff members may have greater rights under an employment agreement, collective contract, employment the typical law or other legislation.

Discover more about worker rights under the ESA.

How to inform who is a worker

The relationship between an individual and the organization (or individual) they are working for figures out whether the individual is a staff member and entitled to defenses under the ESA. A person may be considered a staff member under the ESA when at least some of the following explains the relationship:

– the work the private carries out is a fundamental part of the company

– business chooses:- what the person is to do

– how much the individual will be paid

– where and when the work is carried out

If you’re unsure who is an employee 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 general info about who is a staff member but can not supply advice.

If you’re still not sure whether somebody is a staff member, please talk to a lawyer.

How to tell who is an independent contractor

An independent contractor is somebody who is in service on their own. A person might be considered an professional, and not covered by the ESA, when at least a few of the following applies:

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

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

– identifies how, when or where the work is performed

– decides whether to subcontract a few of the work

Example

Fariah works as a customer care agent for a sales service. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the organization’s workplace. She utilizes the organization’s telephones and computers. She is paid $25.50 per hour. Her work contract does not have an end date, although her company can fire or employment discipline her for bad performance. Her employment agreement mentions that she is an independent specialist and so she does not receive overtime pay, getaway pay or public holiday pay.

Fariah believes she might in fact be an employee 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 requirements officer investigates her claim. The officer takes a look at the relationship between Fariah and the sales service and discovers that she is an employee

It does not matter that Fariah signed the employment agreement mentioning that she is an independent specialist because the facts reveal she is a staff member.

The employment requirements officer orders the sales company 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 contractor: Common mistaken beliefs

An individual may be considered a worker even if:

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

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

– submits invoices to the company.

– uses their own lorry for work purposes.

Volunteers

Volunteers are not workers under the ESA. However, the truth that someone is called a “volunteer” does not determine whether that individual is a worker and entitled to the securities of the ESA.

The primary elements that figure out whether somebody is a volunteer or an employee are how much:

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

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

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

If the individual is offering services to the family, rather than services in pursuit of a living, that person is more most likely to be a volunteer.

The truth that no salaries were paid does not always indicate that someone is a volunteer. The reality that there was some type of payment does not necessarily suggest someone is a worker. For example, an honorarium may have been paid, employment rather than wages.