5:00 P.m. in the Business’s Office

The Employment Standards Act (ESA) applies to staff members.

An employee includes an individual who:

– performs work for an employer for salaries

– supplies services to an employer for salaries

– receives training from a company, if the skill in which the person is being trained is a skill utilized by the employer’s employees

– is a homeworker

– was an employee

Effective March 21, 2024, a worker includes an individual who performs work throughout a trial period for an employer, if the abilities being examined during the trial duration are skills used by the employer’s staff members or could be used by staff members if there are no other workers. For example, where a of a restaurant asks a job prospect to work a trial shift waiting tables to demonstrate their ability to carry out the task, even where no employment deal has actually been made to that prospect, employment the person is a worker under the ESA.

The ESA does not use to independent professionals, volunteers or other people who are not covered under the ESA. A private considered a worker may 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 allowed to treat staff members covered by the Act as if they are not workers. If a company misclassifies an employee in this method, a work standards officer can release a notice of conflict that leads to a charge, a prosecution or both versus the employer.

Please note, the ESA provides minimum standards only. Some workers might have higher rights under an employment agreement, employment cumulative contract, the common law or other legislation.

Learn more about worker rights under the ESA.

How to tell who is a staff member

The relationship between an individual and the organization (or person) they are working for determines whether the individual is a worker and entitled to securities under the ESA. A person might be thought about a staff member under the ESA when at least some of the following explains the relationship:

– the work the specific carries out is a crucial part of the service

– the service 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 uncertain 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 numerous languages. They can give general details about who is a staff member but can not provide guidance.

If you’re still unsure whether someone is a staff member, please talk to a legal representative.

How to inform who is an independent professional

An independent professional is somebody who is in business on their own. A person may be thought about an independent contractor, and employment not covered by the ESA, when a minimum of a few of the following applies:

– the business can end the individual’s agreement for services, however can not discipline the person

– the individual:- has the chance to make a profit and has a threat of losing money from the work

– determines how, when or employment 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 company. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the company’s workplace. She utilizes the service’s telephones and computer systems. She is paid $25.50 per hour. Her work agreement does not have an end date, although her employer can fire or discipline her for poor efficiency. Her employment agreement specifies that she is an independent specialist therefore she does not get overtime pay, holiday pay or public vacation pay.

Fariah thinks she may really be a worker and might 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 standards officer investigates her claim. The officer takes a look at the relationship between Fariah and the sales service and discovers that she is a staff member

It does not matter that Fariah signed the employment contract stating that she is an independent contractor employment due to the fact that the truths reveal she is an employee.

The work requirements officer orders the sales company to:

– pay Fariah the overtime pay, holiday pay and public vacation pay that she was entitled to as an employee.

– orders the company to release wage statements and keep records

Employee or independent professional: Common misconceptions

An individual might be considered a staff member even if:

– the specific and business concur (orally or in composing) that the person is an independent professional. It is the relationship between the individual and the service (or individual) that matters, not the label that is provided to it

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

– sends invoices to business.

– utilizes their own vehicle for work purposes.

Volunteers

Volunteers are not workers under the ESA. However, the reality that somebody is called a “volunteer” does not determine whether that person is a staff member and entitled to the protections of the ESA.

The primary factors that identify whether somebody is a volunteer or a staff member are just how much:

– business (or person) gain from the individual’s services.

– the private views the arrangement as being in pursuit of a living.

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

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

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