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The Employment Standards Act (ESA) applies to staff members.

A worker includes an individual who:

– performs work for an employer for incomes

– materials services to an employer for wages

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

– is a homeworker

– was a staff member

Effective March 21, 2024, a worker consists of an individual who performs work during a trial duration for a company, if the abilities being assessed during the trial period are skills utilized by the employer’s employees or might be utilized by workers if there are no other staff members. For example, where a company of a restaurant asks a job candidate to work a trial shift waiting tables to demonstrate their capability to perform the task, even where no work deal 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 an employee may be entitled to rights such as:

– base pay

– overtime pay

– public vacations

– getaway with pay

– notification of termination or termination pay

Under the ESA, companies are not allowed to treat employees covered by the Act as if they are not staff members. If a company misclassifies an employee in this method, an employment requirements officer can release a notice of breach that leads to a charge, a prosecution or both against the company.

Please note, the ESA supplies minimum requirements only. Some workers may have greater rights under a work contract, cumulative arrangement, the typical law or other legislation.

Learn more about worker rights under the ESA.

How to tell who is a worker

The relationship in between a private and the company (or employment person) they are working for determines whether the individual is a staff member and entitled to securities under the ESA. A person may be thought about an employee under the ESA when at least a few of the following describes the relationship:

– the work the private carries out is an important part of business

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

– just how much the person will be paid

– where and when the work is performed

If you’re uncertain 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 assist callers in numerous languages. They can provide basic info about who is a worker however can not provide suggestions.

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 professional is somebody who is in organization for themselves. An individual might be considered an independent professional, and not covered by the ESA, when at least some of the following applies:

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

– the person:- has the chance to make a revenue and has a risk of losing cash from the work

– identifies how, when or where the work is performed

– chooses whether to farm out a few of the work

Example

Fariah works as a client service agent for a sales company. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business’s workplace. She uses business’s telephones and computer systems. 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 poor performance. Her employment agreement states that she is an independent contractor therefore she does not receive overtime pay, vacation pay or public holiday pay.

Fariah thinks she might actually be a staff member and may be entitled to overtime pay, trip pay and public holiday pay. She files a claim with the of Labour, Immigration, Training and Skills Development.

An employment requirements officer investigates her claim. The officer looks at the relationship in between Fariah and the sales company and employment discovers that she is a staff member

It does not matter that Fariah signed the employment agreement mentioning that she is an independent contractor because the facts show she is an employee.

The employment requirements officer orders the sales company to:

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

– orders the company to provide wage declarations and keep records

Employee or independent contractor: Common misconceptions

A person might be considered a worker even if:

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

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

– sends billings to business.

– utilizes their own car for work purposes.

Volunteers

Volunteers are not employees under the ESA. However, the fact that someone is called a “volunteer” does not identify whether that individual is a worker and entitled to the defenses of the ESA.

The main elements that identify whether somebody is a volunteer or employment an employee are how much:

– the service (or person) gain from the individual’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 individual is offering services in pursuit of a living or in service of the family.

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

The truth that no incomes were paid does not necessarily imply that someone is a volunteer. The fact that there was some form of payment does not always indicate somebody is a worker. For instance, an honorarium may have been paid, employment instead of salaries.