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5:00 P.m. in the Business’s Office

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

A worker consists of a person who:

– carries out work for an employer for earnings

– materials services to an employer for earnings

– gets training from a company, if the skill in which the individual is being trained is an ability used by the employer’s workers

– is a homeworker

– was a staff member

Effective March 21, 2024, a staff member consists of a person who performs work throughout a trial duration for an employer, if the skills being examined throughout the trial duration are abilities used by the company’s employees or might be used by staff members if there are no other employees. For job instance, where an employer of a restaurant asks a job candidate to work a trial shift waiting tables to show their capability to perform the job, even where no work deal has been made to that candidate, the person is an employee under the ESA.

The ESA does not use to independent specialists, volunteers or other individuals who are not covered under the ESA. An considered a worker might be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– getaway with pay

– notice of termination or job termination pay

Under the ESA, employers are not enabled to deal with employees covered by the Act as if they are not employees. If an employer misclassifies a worker in this way, a work standards officer can issue a notice of conflict that results in a charge, a prosecution or both against the company.

Please note, the ESA supplies minimum standards just. Some staff members may have higher rights under an employment agreement, cumulative contract, job the typical law or other legislation.

Learn more about employee rights under the ESA.

How to inform who is an employee

The relationship between an individual and the service (or person) they are working for figures out whether the individual is a worker and entitled to defenses under the ESA. A person may be thought about a worker under the ESA when at least a few of the following describes the relationship:

– the work the individual performs is an important part of business

– the service chooses:- what the person is to do

– just how much the individual will be paid

– where and job when the work is performed

If you’re unsure 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 offer general details about who is a worker however can not supply suggestions.

If you’re still unsure whether someone is a worker, please speak with a lawyer.

How to tell who is an independent professional

An independent specialist is someone who is in company on their own. An individual may be considered an independent professional, and not covered by the ESA, when at least some of the following applies:

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

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

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

– decides whether to subcontract some of the work

Example

Fariah works as a customer service representative for a sales organization. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the organization’s office. 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 employer can fire or discipline her for poor efficiency. Her employment agreement mentions that she is an independent contractor and so she does not get overtime pay, getaway pay or public holiday pay.

Fariah believes she may actually be an employee and may be entitled to overtime pay, holiday pay and public holiday pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.

A work standards officer investigates her claim. The officer looks 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 mentioning that she is an independent contractor because the truths reveal she is an employee.

The employment requirements officer orders the sales service to:

– pay Fariah the overtime pay, getaway pay and public holiday pay that she was entitled to as a staff member.

– orders the company to release wage declarations and keep records

Employee or job independent contractor: Common misunderstandings

An individual might be considered a staff member even if:

– the individual and business agree (orally or in writing) that the individual is an independent specialist. It is the relationship between the private and the company (or individual) that matters, not the label that is provided to it

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

– submits billings to business.

– uses their own car for work functions.

Volunteers

Volunteers are not workers under the ESA. However, the fact that someone is called a « volunteer » does not determine whether that person is a worker and entitled to the protections of the ESA.

The main elements that determine whether somebody is a volunteer or a worker are how much:

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

– the individual views the arrangement as remaining in pursuit of a living.

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

If the individual is offering services to the family, instead of services in pursuit of a living, that person is most likely to be a volunteer.

The truth that no earnings were paid does not necessarily imply that someone is a volunteer. The reality that there was some type of payment does not necessarily imply someone is an employee. For instance, an honorarium may have been paid, rather than earnings.