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5:00 P.m. in the Business’s Office

The Employment Standards Act (ESA) applies to employees.

An employee consists of a person who:

– carries out work for a company for wages

– products services to an employer for incomes

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

– is a homeworker

– was an employee

Effective March 21, 2024, an employee consists of an individual who performs work during a trial period for an employer, if the abilities being evaluated during the are skills utilized by the employer’s workers or might be used by employees if there are no other workers. For instance, where a company of a dining establishment asks a task candidate to work a trial shift waiting tables to show their capability to perform the job, even where no employment offer has been made to that candidate, the individual is an employee 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 a worker might be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– vacation with pay

– notice of termination or termination pay

Under the ESA, employers are not permitted to treat workers covered by the Act as if they are not workers. If an employer misclassifies a staff member in this method, an employment requirements officer can issue a notice of conflict that results in a penalty, a prosecution or both against the employer.

Please note, referall.us the ESA provides minimum requirements just. Some staff members might have higher rights under an employment agreement, cumulative contract, the common 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 person) they are working for identifies whether the person is an employee and entitled to securities under the ESA. A person may be thought about an employee under the ESA when at least a few of the following describes the relationship:

– the work the specific carries out is an essential part of the company

– business chooses:- what the person is to do

– just how much the person will be paid

– where and when the work is carried out

If you’re not sure 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 help callers in several languages. They can give general information about who is a staff member however can not offer recommendations.

If you’re still unsure whether someone is a staff member, please speak to an attorney.

How to tell who is an independent contractor

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

– business can end the individual’s contract for services, but can not discipline the person

– the person:- has the chance to earn a profit and has a risk of losing money 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 customer care agent for a sales organization. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s workplace. She utilizes the service’s telephones and computer systems. She is paid $25.50 per hour. Her employment contract does not have an end date, although her company can fire or discipline her for poor performance. Her employment agreement mentions that she is an independent contractor therefore she does not receive overtime pay, getaway pay or public holiday pay.

Fariah thinks she may really be a staff member and may be entitled to overtime pay, trip pay and public holiday pay. She files a claim 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 organization and discovers that she is an employee

It does not matter that Fariah signed the employment agreement specifying that she is an independent contractor due to the fact that the realities reveal she is a worker.

The employment requirements 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 employer to issue wage statements and keep records

Employee or independent contractor: Common misunderstandings

A person might be considered an employee even if:

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

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

– sends billings to business.

– utilizes their own car for work purposes.

Volunteers

Volunteers are not employees 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 protections of the ESA.

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

– the service (or person) advantages from the person’s services.

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

In family-run services, the concern will often be whether the person is supplying services in pursuit of a living or in service of the household.

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

The fact that no incomes were paid does not always indicate that somebody is a volunteer. The reality that there was some form of payment does not always suggest someone is an employee. For example, an honorarium might have been paid, instead of earnings.

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