5:00 P.m. in the Business’s Office

The Employment Standards Act (ESA) uses to workers.

A worker includes a person who:

– carries out work for an employer for earnings

– supplies services to an employer for wages

training from an employer, if the ability in which the individual is being trained is a skill utilized by the company’s workers

– is a homeworker

– was an employee

Effective March 21, 2024, a staff member includes a person who carries out work during a trial duration for an employer, if the skills being evaluated throughout the trial duration are skills utilized by the employer’s employees or could be used by workers if there are no other staff members. For instance, where an employer of a dining establishment asks a job candidate to work a trial shift waiting tables to show their ability to carry out the task, even where no work 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 individuals who are not covered under the ESA. A private thought about an employee may be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– trip with pay

– notice of termination or termination pay

Under the ESA, companies are not allowed to deal with employees covered by the Act as if they are not staff members. If an employer misclassifies an employee in this way, an employment standards officer can issue a notice of conflict that results in a charge, a prosecution or both against the company.

Please note, the ESA supplies minimum standards only. Some workers may have greater rights under an employment agreement, cumulative contract, the common law or other legislation.

Discover more about employee rights under the ESA.

How to inform who is an employee

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

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

– the company decides:- what the individual is to do

– how much the individual will be paid

– where and when the work is carried out

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 several languages. They can offer general details about who is an employee but can not supply guidance.

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

How to inform who is an independent contractor

An independent specialist is somebody who is in service on their own. An individual might be thought about an independent contractor, and not covered by the ESA, when a minimum of a few of the following applies:

– the organization 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

– identifies how, when or where the work is performed

– decides whether to farm out a few of the work

Example

Fariah works as a client service representative for a sales business. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the company’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 company can fire or discipline her for bad performance. Her work agreement states that she is an independent contractor and so she does not receive overtime pay, holiday pay or public vacation pay.

Fariah believes she may really be a staff member and may be entitled to overtime pay, getaway pay and public vacation pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.

An employment requirements officer examines her claim. The officer looks at the relationship in between Fariah and the sales company and discovers that she is an employee

It does not matter that Fariah signed the employment agreement stating that she is an independent contractor due to the fact that the truths reveal she is a staff member.

The employment standards officer orders the sales organization to:

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

– orders the company to release wage statements and keep records

Employee or referall.us independent specialist: Common mistaken beliefs

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

– the private and business concur (orally or in composing) that the individual is an independent professional. It is the relationship between the individual and the company (or person) that matters, not the label that is provided to it

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

– sends billings 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 figure out whether that individual is an employee and entitled to the defenses of the ESA.

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

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

– the individual views the arrangement as being in pursuit of a living.

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

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

The fact that no incomes were paid does not always mean that somebody is a volunteer. The truth that there was some kind of payment does not necessarily imply somebody is a worker. For instance, an honorarium may have been paid, rather than wages.