5:00 P.m. in Business’s Office
The Employment Standards Act (ESA) applies to employees.
An employee consists of an individual who:
– performs work for a company for salaries
– materials services to an employer for incomes
– receives training from an employer, if the ability in which the person is being trained is an ability utilized by the company’s employees
– is a homeworker
– was a worker
Effective March 21, 2024, a staff member consists of a person who performs work throughout a trial period for a company, if the skills being examined during the are skills utilized by the company’s workers or could be utilized by workers if there are no other staff members. For instance, where a company of a restaurant asks a job prospect to work a trial shift waiting tables to demonstrate their ability to perform the job, even where no work offer has been made to that prospect, the person 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 private considered a staff member may be entitled to rights such as:
– minimum wage
– overtime pay
– public holidays
– vacation with pay
– notice of termination or termination pay
Under the ESA, employers are not permitted to treat employees covered by the Act as if they are not employees. If an employer misclassifies an employee in this method, a work standards officer can release a notice of contravention that leads to a penalty, a prosecution or both against the company.
Please note, the ESA offers minimum standards only. Some workers might have greater rights under an employment agreement, cumulative agreement, the typical law or other legislation.
Discover more about staff member rights under the ESA.
How to inform who is an employee
The relationship in between a private and business (or person) they are working for figures out whether the individual is a worker and entitled to defenses under the ESA. An individual may be thought about a staff member under the ESA when at least a few of the following describes the relationship:
– the work the private performs is a fundamental part of business
– business chooses:- what the person is to do
– just 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 help callers in several languages. They can provide general information about who is a staff member however can not offer suggestions.
If you’re still not sure whether somebody is a worker, please speak to a lawyer.
How to tell who is an independent contractor
An independent contractor is somebody who is in company on their own. An individual might be considered an independent contractor, and not covered by the ESA, when a minimum of some of the following applies:
– business can end the individual’s agreement for services, however can not discipline the individual
– the person:- has the chance to make a profit and employment has a risk of losing cash from the work
– determines how, when or where the work is carried out
– decides 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 service’s workplace. She utilizes 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 bad efficiency. Her employment agreement specifies that she is an independent specialist therefore she does not receive overtime pay, holiday pay or public vacation pay.
Fariah thinks she may in fact be a staff member and may be entitled to overtime pay, vacation pay and public holiday pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.
An employment requirements officer examines her claim. The officer takes a look at the relationship between Fariah and the sales company and discovers that she is an employee
It does not matter that Fariah signed the employment contract mentioning that she is an independent contractor because the realities reveal she is a staff member.
The employment requirements officer orders the sales business to:
– pay Fariah the overtime pay, employment vacation pay and public holiday pay that she was entitled to as an employee.
– orders the company to issue wage statements and keep records
Employee or independent specialist: Common mistaken beliefs
A person might be thought about a worker even if:
– the individual and business agree (orally or in composing) that the person is an independent specialist. It is the relationship in between the private and the organization (or individual) that matters, not the label that is offered to it
– the person:- charges the balanced sales tax (HST).
– sends billings to the business.
– utilizes their own car for work purposes.
Volunteers
Volunteers are not staff members under the ESA. However, the reality that somebody 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 identify whether somebody is a volunteer or a staff member are just how much:
– business (or individual) take advantage of the individual’s services.
– the private views the plan as being in pursuit of a living.
In family-run organizations, the question will typically be whether the person is offering services in pursuit of a living or in service of the household.
If the person is offering services to the household, rather than services in pursuit of a living, employment that individual is more likely to be a volunteer.
The fact that no incomes were paid does not necessarily indicate that someone is a volunteer. The reality that there was some type of payment does not always mean somebody is a worker. For instance, an honorarium might have been paid, instead of incomes.