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

An employee consists of an individual who:

– performs work for a company for incomes

– products services to an employer for earnings

– receives training from a company, 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 staff member consists of an individual who carries out work during a trial period for an employer, if the skills being examined during the trial duration are abilities utilized by the employer’s workers or might be utilized by workers if there are no other staff members. For instance, where an employer of a dining establishment asks a task prospect to work a trial shift waiting tables to demonstrate their capability to carry out the task, even where no work offer has been made to that prospect, the person 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 private considered a worker might be entitled to rights such as:

– minimum wage

– overtime pay

– public vacations

– trip with pay

– notice of termination or termination pay

Under the ESA, employers are not permitted to deal with employees covered by the Act as if they are not employees. If a company misclassifies a staff member in this way, a work requirements officer can provide a notice of breach that leads to a penalty, a prosecution or both versus the employer.

Please note, the ESA supplies minimum requirements just. Some employees might have higher rights under an employment contract, cumulative agreement, the typical law or other legislation.

Discover more about worker rights under the ESA.

How to tell who is a worker

The relationship between a private and business (or individual) they are working for identifies whether the individual is an employee and entitled to protections under the ESA. A person might be considered a staff member under the ESA when at least some of the following explains the relationship:

– the work the individual performs is a vital part of the business

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

– just how much the individual will be paid

– where and when the work is carried out

If you’re unsure who is a staff member 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 several languages. They can give basic info about who is a staff member but can not supply recommendations.

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

How to tell who is an independent professional

An independent contractor is someone who stays in business on their own. An individual may be considered an independent contractor, and not covered by the ESA, when a minimum of a few of the following uses:

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

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

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

– chooses whether to subcontract a few of the work

Example

Fariah works as a consumer service agent for a sales company. She should 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 computers. 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 bad efficiency. Her employment contract mentions that she is an independent professional therefore she does not get overtime pay, holiday pay or public holiday pay.

Fariah thinks she might really be a staff member and might be entitled to overtime pay, vacation pay and public holiday pay. She sues 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 contractor since the truths show she is an employee.

The work requirements officer orders the sales service to:

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

– orders the employer to provide wage declarations and keep records

Employee or independent specialist: Common misconceptions

A person may be thought about an employee even if:

– the specific and business agree (orally or in composing) that the individual is an independent specialist. It is the relationship between the individual and the organization (or person) that matters, not the label that is provided to it

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

– submits invoices to business.

– utilizes their own automobile for work functions.

Volunteers

Volunteers are not workers under the ESA. However, the reality that somebody is called a “volunteer” does not figure out whether that person is a worker and entitled to the defenses of the ESA.

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

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

– the specific views the arrangement as remaining in pursuit of a living.

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

If the person is offering services to the family, instead of services in pursuit of a living, that individual is more likely to be a volunteer.

The fact that no incomes were paid does not necessarily imply that somebody is a volunteer. The reality that there was some form of payment does not necessarily imply somebody is an employee. For referall.us example, an honorarium might have been paid, instead of incomes.