5:00 P.m. in Business’s Office

The Act (ESA) applies to staff members.

An employee consists of a person who:

– performs work for an employer for incomes

– supplies services to a company for earnings

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

– is a homeworker

– was a staff member

Effective March 21, 2024, a staff member includes an individual who performs work throughout a trial duration for employment an employer, employment if the abilities being examined during the trial duration are skills used by the employer’s workers or might be used by workers if there are no other employees. For instance, where a company of a dining establishment asks a task candidate to work a trial shift waiting tables to demonstrate their capability to perform the task, even where no employment offer has been made to that candidate, the individual is a worker under the ESA.

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

– minimum wage

– 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 workers. If a company misclassifies a staff member in this way, a work requirements officer can provide a notice of breach that results in a penalty, a prosecution or both versus the company.

Please note, the ESA supplies minimum standards just. Some employees may have higher rights under a work contract, collective agreement, the common law or other legislation.

Discover more about staff member rights under the ESA.

How to tell who is a worker

The relationship in between a specific and business (or individual) they are working for determines whether the individual is an employee and entitled to protections under the ESA. A person may be considered a worker under the ESA when at least a few of the following describes the relationship:

– the work the individual performs is an essential part of the business

– business 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 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 information about who is an employee however can not offer recommendations.

If you’re still unsure whether somebody is a worker, please talk with an attorney.

How to inform who is an independent professional

An independent professional is someone who stays in business on their own. An individual might be considered an independent contractor, and not covered by the ESA, when at least some of the following applies:

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

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

– identifies how, when or where the work is performed

– decides whether to subcontract a few of the work

Example

Fariah works as a client service agent for a sales company. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s workplace. She uses the service’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 employment poor efficiency. Her work contract specifies that she is an independent specialist and so she does not get overtime pay, employment trip pay or public holiday pay.

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

A work standards officer investigates her claim. The officer looks at the relationship between Fariah and the sales service and discovers that she is a staff member

It does not matter that Fariah signed the employment agreement stating that she is an independent contractor because the realities reveal she is a worker.

The work standards officer orders the sales organization to:

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

– orders the company to release wage declarations and keep records

Employee or independent professional: Common mistaken beliefs

An individual may be thought about a staff member even if:

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

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

– sends invoices to business.

– uses their own vehicle for work purposes.

Volunteers

Volunteers are not workers under the ESA. However, the fact that someone is called a “volunteer” does not identify whether that person is a staff member and entitled to the defenses of the ESA.

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

– the organization (or individual) benefits from the individual’s services.

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

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

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

The truth that no salaries were paid does not always suggest that somebody is a volunteer. The truth that there was some form of payment does not always mean someone is an employee. For instance, an honorarium might have been paid, rather than salaries.