The Employment Standards Act (ESA) uses to staff members.
An employee includes a person who:
- performs work for an employer for incomes
- products services to an employer for wages
- 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 worker
Effective March 21, 2024, an employee includes a person who performs work throughout a trial period for an employer, if the abilities being assessed during the trial period are abilities utilized by the company's employees or might be utilized by staff members if there are no other staff members. For instance, where a company of a restaurant asks a job candidate to work a trial shift waiting tables to show their ability to carry out the job, even where no work deal has been made to that prospect, the person is an employee under the ESA.
The ESA does not use to independent specialists, volunteers or other people who are not covered under the ESA. A private considered a staff member might be entitled to rights such as:
- minimum wage
- overtime pay
- public holidays
- getaway with pay
- notice of termination or termination pay
Under the ESA, employers are not allowed to treat staff members covered by the Act as if they are not employees. If a company misclassifies a worker in this method, a work standards officer can issue a notice of breach that results in a penalty, a prosecution or both versus the company.
Please note, the ESA supplies minimum requirements only. Some employees may have greater rights under an employment agreement, cumulative arrangement, the typical law or other legislation.
Learn more about worker rights under the ESA.
How to tell who is an employee
The relationship between a private and business (or individual) they are working for determines whether the individual is a staff member and entitled to securities under the ESA. A person may be thought about a worker under the ESA when at least some of the following describes the relationship:
- the work the private carries out is an important part of the organization
- the organization chooses:- what the individual is to do
- how much the individual will be paid
- where and when the work is performed
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 multiple languages. They can give general info about who is an employee however can not supply recommendations.
If you're still uncertain whether somebody is a worker, please talk with a lawyer.
How to inform who is an independent specialist
An independent professional is someone who is in service for themselves. An may be considered an independent contractor, and not covered by the ESA, when at least a few of the following applies:
- the service can end the person's contract for services, employment but can not discipline the person
- the individual:- has the opportunity to earn a profit and has a risk of losing money from the work
- figures out how, when or where the work is carried out
- decides whether to subcontract a few of the work
Example
Fariah works as a customer care representative for a sales business. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's office. She uses 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 employment contract states that she is an independent specialist and so she does not receive overtime pay, trip pay or public holiday pay.
Fariah thinks she might in fact be an employee and may 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 takes a look at the relationship between Fariah and the sales service and finds that she is a staff member
It does not matter that Fariah signed the employment contract specifying that she is an independent specialist since the realities reveal she is a staff member.
The work standards officer orders the sales business to:
- pay Fariah the overtime pay, vacation pay and public holiday pay that she was entitled to as an employee.
- orders the company to issue wage statements and keep records
Employee or independent contractor: Common mistaken beliefs
A person might be thought about a worker even if:
- the private and business concur (orally or in writing) that the person is an independent specialist. It is the relationship between the individual and the company (or person) that matters, not the label that is provided to it
- the individual:- charges the balanced sales tax (HST).
- sends invoices to business.
- uses their own lorry for work purposes.
Volunteers
Volunteers are not workers under the ESA. However, the reality that someone is called a "volunteer" does not figure out whether that individual is an employee and entitled to the securities of the ESA.
The primary aspects that figure out whether somebody is a volunteer or a staff member are just how much:
- the service (or individual) take advantage of the person's services.
- the private views the arrangement as remaining in pursuit of a living.
In family-run companies, the concern will frequently be whether the individual is offering 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 person is most likely to be a volunteer.
The fact that no earnings were paid does not always suggest that someone is a volunteer. The truth that there was some form of payment does not necessarily suggest someone is an employee. For example, an honorarium might have been paid, rather than earnings.
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5:00 P.m. in Business's Office
Abbie Cairns edited this page 2 days ago