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The Employment Standards Act (ESA) uses to workers.

An employee includes an individual who:

– performs work for an employer for earnings

– supplies services to an employer for employment incomes

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

– is a homeworker

– was a worker

Effective March 21, 2024, a worker consists of an individual who carries out work throughout a trial duration for a company, if the abilities being examined during the trial period are abilities utilized by the employer’s employees or could be used by staff members 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 demonstrate their capability to perform the task, even where no work offer has been made to that candidate, the individual is a worker under the ESA.

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

– base pay

– overtime pay

– public holidays

– holiday with pay

– notification of termination or termination pay

Under the ESA, companies are not enabled to deal with staff members covered by the Act as if they are not employees. If an employer misclassifies an employee in this way, a work standards officer can release a notification of breach that leads to a charge, a prosecution or both against the company.

Please note, the ESA supplies minimum requirements only. Some staff members may have greater rights under an employment agreement, cumulative contract, the typical law or other legislation.

Find out more about employee rights under the ESA.

How to tell who is an employee

The relationship between a specific and the organization (or person) they are working for figures out whether the individual is a staff member and entitled to defenses under the ESA. A person might be thought about an employee under the ESA when a minimum of a few of the following describes the relationship:

– the work the private performs is a fundamental part of the organization

– business chooses:- what the individual is to do

– how much the individual will be paid

– where and when the work is

If you’re unsure 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 assist callers in several languages. They can offer general information about who is a staff member however can not supply suggestions.

If you’re still not sure whether somebody is a staff member, please speak with a lawyer.

How to tell who is an independent specialist

An independent professional is someone who stays in business for themselves. An individual may be thought about an independent contractor, and not covered by the ESA, when at least some of the following uses:

– the organization can end the individual’s contract for services, however can not discipline the individual

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

– figures out how, employment when or where the work is carried out

– decides whether to subcontract some of the work

Example

Fariah works as a customer support agent for a sales business. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business’s workplace. She utilizes 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 bad efficiency. Her work agreement specifies that she is an independent professional therefore she does not get overtime pay, trip pay or public vacation pay.

Fariah thinks she might actually be a worker and employment might be entitled to overtime pay, trip pay and employment public holiday pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.

A work requirements officer investigates her claim. The officer takes a look at the relationship between Fariah and the sales organization and finds that she is a worker

It does not matter that Fariah signed the employment agreement specifying that she is an independent specialist due to the fact that the realities reveal she is an employee.

The work requirements officer orders the sales company to:

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

– orders the employer to provide wage declarations and keep records

Employee or independent specialist: Common misunderstandings

An individual may be thought about a worker even if:

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

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

– sends invoices to business.

– utilizes their own lorry for work functions.

Volunteers

Volunteers are not employees under the ESA. However, the reality that somebody is called a “volunteer” does not figure out whether that individual is an employee and entitled to the securities of the ESA.

The primary elements that figure out whether someone is a volunteer or a staff member are just how much:

– business (or individual) take advantage of the individual’s services.

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

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

If the person is offering services to the household, instead of services in pursuit of a living, that person is more likely to be a volunteer.

The reality that no earnings were paid does not necessarily suggest that someone is a volunteer. The truth that there was some form of payment does not always imply somebody is a worker. For example, an honorarium may have been paid, employment rather than wages.