5:00 P.m. in the 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 salaries

– supplies services to an employer for incomes

– receives training from a company, if the ability in which the individual is being trained is an ability used by the company’s employees

– is a homeworker

– was a worker

Effective March 21, 2024, an employee includes an individual who carries out work throughout a trial period for a company, if the abilities being evaluated throughout the trial duration are abilities used by the employer’s workers or could be used by employees if there are no other workers. For instance, where a of a dining establishment asks a task candidate to work a trial shift waiting tables to show their ability to carry out the task, even where no employment deal has been made to that prospect, the person is a worker 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 staff member might be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– vacation with pay

– notification of termination or termination pay

Under the ESA, companies are not permitted to treat workers covered by the Act as if they are not staff members. If a company misclassifies a staff member in this way, an employment requirements officer can release a notice of breach that results in a charge, 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, the typical law or other legislation.

Discover more about employee rights under the ESA.

How to inform who is a staff member

The relationship between a specific and the service (or person) they are working for figures out whether the individual is a worker and entitled to securities 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 individual performs is a vital part of the business

– business chooses:- what the individual is to do

– how much the individual will be paid

– where and when the work is performed

If you’re not sure 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 give general info about who is an employee but can not provide recommendations.

If you’re still uncertain whether someone is an employee, please speak with a lawyer.

How to tell who is an independent contractor

An independent professional is someone who stays in business on their own. A person might be thought about an independent specialist, and not covered by the ESA, when at least a few of the following applies:

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

– the individual:- has the opportunity to make a revenue and has a threat of losing money from the work

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

– chooses whether to subcontract some of the work

Example

Fariah works as a customer support representative for referall.us a sales service. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business’s workplace. She uses the business’s telephones and computers. She is paid $25.50 per hour. Her work agreement does not have an end date, although her company can fire or discipline her for poor efficiency. Her employment agreement specifies that she is an independent specialist therefore she does not get overtime pay, holiday pay or public holiday pay.

Fariah believes she might in fact be an employee and may be entitled to overtime pay, holiday pay and public holiday pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.

A work requirements officer investigates her claim. The officer looks 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 worker.

The work requirements officer orders the sales organization to:

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

– orders the company to provide wage declarations and keep records

Employee or independent contractor: Common misconceptions

An individual might be thought about an employee even if:

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

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

– sends billings to the service.

– uses their own lorry for work functions.

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 protections of the ESA.

The main factors that figure out whether somebody is a volunteer or a worker are how much:

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

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

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

If the individual is providing services to the household, instead of services in pursuit of a living, that person is most likely to be a volunteer.

The reality that no earnings were paid does not necessarily imply that somebody is a volunteer. The reality that there was some type of payment does not necessarily mean somebody is an employee. For instance, an honorarium may have been paid, rather than wages.