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5:00 P.m. in the Business’s Office

The Employment Standards Act (ESA) uses to employees.

A staff member consists of a person who:

– carries out work for a company for incomes

– materials services to a company for earnings

– gets training from an employer, if the skill in which the person is being trained is a skill used by the company’s staff members

– is a homeworker

– was a staff member

Effective March 21, 2024, a staff member consists of a person who performs work throughout a trial period for a company, if the abilities being evaluated throughout the trial period are skills used by the company’s workers or job might be used by workers if there are no other staff members. For instance, where a company of a restaurant asks a job candidate to work a trial shift waiting tables to demonstrate their ability to carry out the job, even where no employment deal has actually been made to that prospect, the individual is an employee under the ESA.

The ESA does not apply to independent specialists, volunteers or other people who are not covered under the ESA. A specific thought about a worker may be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– trip with pay

– notification of termination or termination pay

Under the ESA, companies are not enabled to treat workers covered by the Act as if they are not staff members. If an employer misclassifies an employee in this way, a work requirements officer can provide a notice of breach that leads to a charge, a prosecution or both versus the employer.

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

Discover more about employee rights under the ESA.

How to tell who is a staff member

The relationship in between a private and business (or individual) they are working for identifies whether the individual is a worker and entitled to securities under the ESA. An individual might be considered an employee under the ESA when at least a few of the following explains the relationship:

– the work the individual performs is a vital part of business

– business chooses:- what the individual is to do

– how much the individual will be paid

– where and when the work is performed

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 help callers in several languages. They can give general info about who is a staff member however can not provide guidance.

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

How to inform who is an independent specialist

An independent contractor is somebody who stays in business for themselves. A person may be considered an independent professional, and not covered by the ESA, when at least a few of the following applies:

– the company can end the individual’s contract for job services, however can not discipline the person

– the individual:- has the opportunity to make an earnings and has a threat of losing cash from the work

– determines how, when or where the work is carried out

– chooses whether to subcontract some of the work

Example

Fariah works as a customer care representative for a sales company. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business’s workplace. She uses the service’s telephones and computers. 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 performance. Her employment agreement states that she is an independent contractor and so she does not get overtime pay, holiday pay or job public holiday pay.

Fariah believes she might in fact be a staff member and may be entitled to overtime pay, job getaway pay and public vacation pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.

A work standards officer examines her claim. The officer takes a look at the relationship between Fariah and the sales business and discovers that she is a worker

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 work requirements officer orders the sales company to:

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

– orders the employer to issue wage statements and keep records

Employee or independent contractor: Common mistaken beliefs

A person might be considered an even if:

– the individual and business concur (orally or in writing) that the individual is an independent specialist. It is the relationship between the specific and the business (or individual) that matters, not the label that is given to it

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

– submits invoices to business.

– uses their own car for work functions.

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 staff member and entitled to the securities of the ESA.

The primary elements that determine whether someone is a volunteer or an employee are just how much:

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

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

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

If the person is providing 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 earnings were paid does not always indicate that somebody is a volunteer. The fact that there was some type of payment does not always indicate somebody is a worker. For instance, an honorarium might have been paid, instead of wages.