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5:00 P.m. in the Business's Office
The Employment Standards Act (ESA) applies to employees.
A staff member consists of a person who:
- performs work for an employer for salaries
- supplies services to an employer for earnings
- receives training from an employer, if the ability in which the person is being trained is a skill used by the company's employees
- is a homeworker
- was a staff member
Effective March 21, 2024, a worker includes a person who carries out work during a trial period for an employer, if the skills being assessed during the trial duration are abilities used by the employer's employees or might be used by employees if there are no other staff members. For instance, where an employer of a restaurant asks a task candidate to work a trial shift waiting tables to show their capability to perform the task, even where no employment offer has been made to that candidate, the individual is an employee under the ESA.
The ESA does not apply to independent professionals, volunteers or other people who are not covered under the ESA. A specific considered a worker might be entitled to rights such as:
- base pay
- overtime pay
- public holidays
- trip with pay
- notification of termination or termination pay
Under the ESA, employers are not permitted to deal with employees covered by the Act as if they are not employees. If a company misclassifies a staff member in this method, an employment requirements officer can issue a notice of conflict that results in a charge, a prosecution or both against the employer.
Please note, the ESA provides minimum standards only. Some workers might have greater rights under an employment agreement, collective agreement, the typical law or other legislation.
Learn more about worker rights under the ESA.
How to inform who is an employee
The relationship between a private and business (or individual) they are working for determines whether the person is an employee and entitled to defenses under the ESA. A person may be considered a staff member under the ESA when a minimum of a few of the following describes the relationship:
- the work the private carries out is a crucial part of the service
- the organization decides:- 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 offer basic info about who is an employee however can not provide guidance.
If you're still not sure whether somebody is a worker, please speak to a lawyer.
How to inform who is an independent contractor
An independent specialist is someone who is in service for themselves. An individual may be thought about an independent professional, and not covered by the ESA, when a minimum of a few of the following applies:
- business can end the person's agreement for services, but can not discipline the person
- the individual:- has the opportunity to make a profit and has a threat of losing cash from the work
how, when or where the work is carried out
- decides whether to subcontract some of the work
Example
Fariah works as a customer support 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 uses the company'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 bad efficiency. Her employment agreement states that she is an independent professional and so she does not receive overtime pay, trip pay or public vacation pay.
Fariah believes she may in fact be a staff member and might be entitled to overtime pay, holiday pay and public holiday pay. She files a claim with the Ministry of Labour, Immigration, Training and Skills Development.
A work standards officer examines 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 professional due to the fact that the facts reveal she is a worker.
The employment requirements officer orders the sales organization to:
- pay Fariah the overtime pay, trip pay and public holiday pay that she was entitled to as a worker.
- orders the employer to issue wage declarations and keep records
Employee or independent contractor: Common misunderstandings
A person may be thought about an employee even if:
- the specific and referall.us the business concur (orally or in composing) that the individual is an independent contractor. It is the relationship between the specific and the business (or person) that matters, not the label that is provided to it
- the individual:- charges the harmonized sales tax (HST).
- submits billings to business.
- uses their own automobile for work purposes.
Volunteers
Volunteers are not employees under the ESA. However, the reality that somebody is called a "volunteer" does not determine whether that individual is a staff member and entitled to the protections of the ESA.
The main aspects that determine whether somebody is a volunteer or a worker are just how much:
- the service (or person) take advantage of the individual's services.
- the specific views the plan as remaining in pursuit of a living.
In family-run services, the question will typically be whether the individual is providing services in pursuit of a living or in service of the household.
If the person is offering services to the family, instead of services in pursuit of a living, that person is more likely to be a volunteer.
The fact that no salaries were paid does not always mean that someone is a volunteer. The fact that there was some form of payment does not necessarily imply someone is an employee. For instance, an honorarium might have been paid, instead of wages.