5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) applies to employees.

An employee consists of a person who:

– carries out work for a company for incomes

– products services to an employer for salaries

– gets training from an employer, if the ability in which the person is being trained is a skill used by the company’s employees

– is a homeworker

– was a staff member

Effective March 21, 2024, a worker consists of an individual who carries out work during a trial period for a company, if the skills being examined throughout the trial period are skills used by the company’s workers or could be used by employees if there are no other staff members. For example, 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 job, even where no employment offer has been made to that prospect, the individual is a staff member under the ESA.

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

– minimum wage

– overtime pay

– public vacations

– vacation with pay

– notification of termination or termination pay

Under the ESA, companies are not allowed to deal with staff members covered by the Act as if they are not employees. If a company misclassifies a staff member in this way, an employment standards officer can issue a notification of conflict that leads to a penalty, a prosecution or both versus the employer.

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

Find out more about employee rights under the ESA.

How to tell who is an employee

The relationship in between an individual and business (or person) they are working for figures out whether the person is an employee and entitled to protections under the ESA. A person might be considered an employee under the ESA when a minimum of some of the following explains the relationship:

– the work the specific performs is a crucial part of the service

– the service decides:- what the person is to do

– just how much the person will be paid

– where and when the work is performed

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

at 1-800-531-5551

TTY 1-866-567-8893

The Information Centre can help callers in multiple languages. They can give basic details about who is a staff member but can not provide guidance.

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 contractor is someone who is 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 applies:

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

– the individual:- has the chance to earn a profit and has a threat of losing cash from the work

– determines how, when or where the work is carried out

– decides whether to farm out a few of the work

Example

Fariah works as a customer support representative 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 office. She utilizes business’s telephones and computers. She is paid $25.50 per hour. Her work agreement does not have an end date, although her employer can fire or discipline her for poor performance. Her employment contract specifies that she is an independent contractor and employment so she does not receive overtime pay, holiday pay or public holiday pay.

Fariah believes she may really be an employee and may 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 in between Fariah and the sales business and finds that she is a staff member

It does not matter that Fariah signed the employment agreement stating that she is an independent specialist due to the fact that the facts show she is a worker.

The employment requirements officer orders the sales company to:

– pay Fariah the overtime pay, trip pay and public holiday pay that she was entitled to as a staff member.

– orders the employer to issue wage statements and keep records

Employee or independent professional: Common misconceptions

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

– the individual and the organization concur (orally or employment in writing) that the individual is an independent contractor. It is the relationship in between the specific and the organization (or individual) that matters, not the label that is offered to it

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

– submits billings to business.

– utilizes their own vehicle for work functions.

Volunteers

Volunteers are not workers under the ESA. However, the reality that someone is called a « volunteer » does not determine whether that person is a staff member and employment entitled to the defenses of the ESA.

The main factors that figure out whether someone is a volunteer or a staff member are how much:

– the business (or person) take advantage of the person’s services.

– the individual views the plan as being in pursuit of a living.

In family-run businesses, the question will frequently be whether the person is supplying services in pursuit of a living or in service of the household.

If the individual is supplying 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 earnings were paid does not necessarily suggest that somebody is a volunteer. The fact that there was some type of payment does not always mean someone is a staff member. For instance, an honorarium may have been paid, instead of wages.