5:00 P.m. in the Business’s Office

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

A worker consists of an individual who:

– performs work for a company for employment wages

– products services to a company for earnings

– gets training from an employer, if the skill in which the individual is being trained is an ability used by the

– is a homeworker

– was an employee

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

The ESA does not use to independent contractors, volunteers or other people who are not covered under the ESA. An individual considered an employee may be entitled to rights such as:

– minimum wage

– overtime pay

– public vacations

– trip with pay

– notice of termination or termination pay

Under the ESA, companies are not enabled to treat workers covered by the Act as if they are not staff members. If an employer misclassifies a worker in this way, an employment requirements officer can issue a notice of contravention that results in a penalty, a prosecution or both against the employer.

Please note, the ESA provides minimum standards only. Some employees might have higher rights under an employment agreement, cumulative contract, 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 a worker and entitled to defenses under the ESA. An individual may be considered a staff member under the ESA when at least a few of the following explains the relationship:

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

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

– just how much the individual will be paid

– where and when the work is performed

If you’re not sure 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 help callers in multiple languages. They can offer basic details about who is a worker however can not offer recommendations.

If you’re still uncertain whether someone is a staff member, employment please speak to a lawyer.

How to inform who is an independent contractor

An independent contractor is someone who stays in business for themselves. An individual may be considered an independent contractor, and employment not covered by the ESA, when at least a few 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 threat of losing cash from the work

– identifies how, when or where the work is performed

– decides whether to subcontract some of the work

Example

Fariah works as a customer service agent for a sales business. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in 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 poor efficiency. Her work contract specifies that she is an independent professional therefore she does not receive overtime pay, trip pay or public vacation pay.

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

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

It does not matter that Fariah signed the work contract mentioning that she is an independent specialist because the realities show she is a staff member.

The work standards officer orders the sales service to:

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

– orders the employer to release wage statements and keep records

Employee or independent professional: Common misunderstandings

An individual might be thought about an employee even if:

– the individual and the organization concur (orally or in writing) that the individual is an independent contractor. It is the relationship in between the specific and the business (or individual) that matters, not the label that is provided to it

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

– submits billings to the service.

– utilizes their own car for work purposes.

Volunteers

Volunteers are not workers under the ESA. However, the truth that someone is called a « volunteer » does not identify whether that individual is an employee and entitled to the defenses of the ESA.

The primary elements that figure out whether somebody is a volunteer or an employee are how much:

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

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

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

If the individual is offering 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 incomes were paid does not necessarily suggest that somebody is a volunteer. The reality that there was some type of payment does not always indicate someone is a staff member. For example, an honorarium may have been paid, instead of earnings.