5:00 P.m. in Business’s Office

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

A staff member consists of a person who:

– carries out work for an employer for salaries

– products services to an employer for salaries

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

– is a homeworker

– was a worker

Effective March 21, 2024, a staff member consists of an individual who performs work throughout a trial period for an employer, if the abilities being assessed during the trial duration are abilities used by the employer’s workers or could be used by staff members if there are no other workers. For example, where a company of a restaurant asks a job candidate to work a trial shift waiting tables to show their capability to perform the job, even where no employment deal has actually been made to that candidate, the person is an employee under the ESA.

The ESA does not use to independent professionals, volunteers or other individuals who are not covered under the ESA. An individual thought about a staff member might be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– vacation with pay

– notice of termination or termination pay

Under the ESA, companies are not enabled to deal with staff members covered by the Act as if they are not employees. If an employer misclassifies a worker in this way, a work requirements officer can issue a notification of contravention that leads to a penalty, a prosecution or both against the company.

Please note, the ESA supplies minimum requirements only. Some employees might have higher rights under a work contract, cumulative contract, the typical law or other legislation.

Discover more about staff member rights under the ESA.

How to inform who is an employee

The relationship between a private and business (or individual) they are working for determines whether the individual is a staff member and entitled to securities under the ESA. A person might be thought about a staff member under the ESA when a minimum of some of the following describes the relationship:

– the work the individual carries out is a fundamental part of business

– business 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, 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 multiple languages. They can offer basic information about who is an employee however can not provide suggestions.

If you’re still not sure whether someone is a worker, please speak to an attorney.

How to inform who is an independent contractor

An independent contractor is somebody who is in company for themselves. A person may be thought about an independent professional, and not covered by the ESA, when a minimum of some of the following applies:

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

– the person:- has the opportunity to make a profit and has a threat of losing cash from the work

– figures out how, when or where the work is performed

– decides whether to subcontract a few of the work

Example

Fariah works as a client service representative for a sales company. 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 computer systems. She is paid $25.50 per hour. Her employment agreement does not have an end date, although her employer can fire or discipline her for poor performance. Her work contract mentions that she is an independent contractor therefore she does not get overtime pay, holiday pay or public vacation pay.

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

An employment standards officer investigates her claim. The officer looks at the relationship in between Fariah and the sales company and finds that she is an employee

It does not matter that Fariah signed the work contract mentioning that she is an independent professional since the facts reveal she is a worker.

The employment standards officer orders the sales company to:

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

– orders the employer to issue wage declarations and keep records

Employee or independent professional: Common misunderstandings

A person might be considered a worker even if:

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

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

– submits invoices to the organization.

– utilizes their own car for work functions.

Volunteers

Volunteers are not staff members 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 protections of the ESA.

The primary elements that identify whether someone is a volunteer or a worker are how much:

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

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

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

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

The reality that no salaries were paid does not necessarily indicate that somebody is a volunteer. The fact that there was some kind of payment does not necessarily indicate someone is a staff member. For instance, an honorarium might have been paid, rather than wages.