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5:00 P.m. in the Business's Office
The Employment Standards Act (ESA) applies to workers.
A worker consists of a person who:
- carries out work for a company for salaries
- products services to an employer for earnings
- gets training from a company, if the skill in which the individual is being trained is an ability utilized by the employer's workers
- is a homeworker
- was a worker
Effective March 21, 2024, a staff member includes an individual who carries out work during a trial period for an employer, if the skills being evaluated throughout the trial period are skills utilized by the company's workers or could be utilized by employees if there are no other staff members. For instance, where a company of a dining establishment asks a job candidate to work a trial shift waiting tables to show their ability to perform the task, even where no employment deal has been made to that prospect, the person is a worker under the ESA.
The ESA does not use to independent contractors, volunteers or other individuals who are not covered under the ESA. A specific thought about an employee might be entitled to rights such as:
- minimum wage
- overtime pay
- public holidays
- trip with pay
- notification 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 staff members. If an employer misclassifies a staff member in this method, an employment standards officer can provide a notice of breach that results in a charge, a prosecution or both versus the company.
Please note, the ESA provides minimum standards just. Some employees may have greater rights under an employment agreement, cumulative contract, employment the common law or other legislation.
Discover more about staff member rights under the ESA.
How to inform who is a worker
The relationship in between an individual and the service (or person) they are working for figures out whether the person is a worker and entitled to securities under the ESA. An individual might be considered an employee under the ESA when a minimum of some of the following describes the relationship:
- the work the individual performs is an important part of business
- the organization chooses:- what the individual is to do
- how much the person will be paid
- where and when the work is performed
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 information about who is a staff member however can not supply advice.
If you're still uncertain whether somebody is a staff member, please talk with a lawyer.
How to tell who is an independent professional
An independent specialist is someone who is in organization for themselves. A person might be considered an independent specialist, employment and not covered by the ESA, when at least a few of the following applies:
- business can end the individual's agreement for services, but can not discipline the person
- the person:- has the chance to make a revenue and has a danger of losing money from the work
- identifies 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 should 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 contract does not have an end date, although her company can fire or discipline her for employment bad efficiency. Her employment agreement states that she is an independent professional therefore she does not get overtime pay, employment vacation pay or public vacation pay.
Fariah believes she may in fact be an employee and might be entitled to overtime pay, trip pay and pay. She files a claim with the Ministry of Labour, Immigration, Training and Skills Development.
An employment requirements officer investigates her claim. The officer looks at the relationship between Fariah and the sales organization and employment finds that she is a staff member
It does not matter that Fariah signed the employment agreement 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 a worker.
- orders the employer to release wage declarations and employment keep records
Employee or independent contractor: Common misconceptions
A person may be thought about a staff member even if:
- the individual and the business concur (orally or in composing) that the individual is an independent specialist. It is the relationship between the private and the business (or individual) that matters, not the label that is provided to it
- the individual:- charges the harmonized sales tax (HST).
- sends billings to the organization.
- utilizes their own vehicle for work purposes.
Volunteers
Volunteers are not staff members under the ESA. However, the truth that somebody is called a "volunteer" does not identify whether that person is a worker and entitled to the securities of the ESA.
The main factors that figure out whether someone is a volunteer or a staff member are how much:
- the company (or person) gain from the individual's services.
- the individual views the plan as remaining in pursuit of a living.
In family-run services, the question will typically be whether the person is providing 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 more most likely to be a volunteer.
The fact that no wages were paid does not always indicate that somebody is a volunteer. The truth that there was some form of payment does not always imply someone is a worker. For example, an honorarium may have been paid, rather than earnings.