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The Employment Standards Act (ESA) applies to employees.
An employee consists of an individual who:
– performs work for an employer for incomes
– supplies services to a company for incomes
– gets training from a company, if the ability in which the individual is being trained is an ability used by the company’s workers
– is a homeworker
– was a staff member
Effective March 21, 2024, a worker includes a person who carries out work throughout a trial period for an employer, if the abilities being evaluated during the trial period are skills used by the employer’s workers or could be used by workers if there are no other employees. For example, where an employer of a restaurant asks a job candidate to work a trial shift waiting tables to show their capability to carry out the task, even where no work deal has actually been made to that prospect, the individual is an employee under the ESA.
The ESA does not use to independent professionals, volunteers or other individuals who are not covered under the ESA. An individual thought about an employee might be entitled to rights such as:
– minimum wage
– overtime pay
– public holidays
– getaway with pay
– notification of termination or termination pay
Under the ESA, companies are not allowed to deal with staff members covered by the Act as if they are not workers. If a company misclassifies a worker in this way, an employment requirements officer can release a notification of contravention that leads to a penalty, a prosecution or both against the employer.
Please note, the ESA provides minimum requirements just. Some employees might have greater rights under an employment agreement, cumulative contract, the common law or other legislation.
Learn more about worker rights under the ESA.
How to inform who is a staff member
The relationship between a private and the company (or individual) they are working for identifies whether the person is a worker and entitled to defenses under the ESA. A person might be thought about a worker under the ESA when a minimum of some of the following describes the relationship:
– the work the individual performs is a vital part of business
– the business decides:- what the person is to do
– 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 assist callers in several languages. They can provide general info about who is an employee but can not offer guidance.
If you’re still not sure whether someone is a staff member, please talk with an attorney.
How to tell who is an independent specialist
An independent professional is someone who is in organization for themselves. A person may be thought about an independent specialist, and not covered by the ESA, when a minimum of some of the following applies:
– business can end the individual’s agreement for job services, job but can not discipline the individual
– the person:- has the opportunity to earn a profit and job has a danger of losing cash from the work
– figures out how, when or where the work is performed
– chooses whether to farm out a few of the work
Example
Fariah works as a customer support representative for a sales service. She must 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 company can fire or discipline her for poor job efficiency. Her employment agreement specifies that she is an independent contractor and so she does not get overtime pay, getaway pay or job public holiday pay.
Fariah believes she might actually be an employee 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 her claim. The officer looks at the relationship in between Fariah and the sales service and finds that she is a worker
It does not matter that Fariah signed the employment agreement mentioning that she is an independent specialist since the facts reveal she is a staff member.
The employment standards officer orders the sales company to:
– pay Fariah the overtime pay, trip 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 independent specialist: Common mistaken beliefs
An individual might be considered an employee even if:
– the specific and business agree (orally or in composing) that the individual is an independent contractor. 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 harmonized sales tax (HST).
– submits billings to the business.
– uses their own lorry for work functions.
Volunteers
Volunteers are not workers under the ESA. However, the reality that somebody is called a “volunteer” does not figure out whether that individual is a staff member and entitled to the securities of the ESA.
The main aspects that identify whether somebody is a volunteer or an employee are how much:
– business (or person) take advantage of the individual’s services.
– the individual views the plan as being in pursuit of a living.
In family-run organizations, the question will typically be whether the individual is supplying services in pursuit of a living or in service of the family.
If the person is providing services to the family, rather than services in pursuit of a living, that individual is more most likely to be a volunteer.
The truth that no salaries were paid does not necessarily imply that someone is a volunteer. The truth that there was some form of payment does not always indicate somebody is a worker. For instance, an honorarium may have been paid, rather than salaries.