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The Employment Standards Act (ESA) applies to workers.

A worker consists of an individual who:

– carries out work for a company for salaries

– materials services to an employer for earnings

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

– is a homeworker

– was an employee

Effective March 21, 2024, a worker consists of an individual who out work during a trial duration for a company, if the skills being assessed during the trial period are abilities used by the company’s workers or might be utilized by staff members if there are no other workers. For example, where an employer of a dining establishment asks a job candidate 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 candidate, the person is a staff member under the ESA.

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

– base pay

– overtime pay

– public vacations

– getaway with pay

– notification of termination or termination pay

Under the ESA, companies are not enabled to treat employees covered by the Act as if they are not staff members. If a company misclassifies a staff member in this method, a work standards officer can release a notice of contravention that results in a charge, a prosecution or both versus the employer.

Please note, the ESA offers minimum standards just. Some employees may have greater rights under an employment agreement, collective contract, the typical law or other legislation.

Find out more about staff member rights under the ESA.

How to tell who is an employee

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

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

– the organization decides:- what the person is to do

– how much the person will be paid

– where and when the work is performed

If you’re unsure 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 give general information about who is a staff member however can not offer recommendations.

If you’re still unsure whether somebody is a worker, please talk to a legal representative.

How to tell who is an independent professional

An independent professional is someone who is in company on their own. An individual may be thought about an independent professional, and not covered by the ESA, referall.us when at least a few of the following applies:

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

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

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

– decides whether to farm out some of the work

Example

Fariah works as a consumer service agent for a sales service. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the company’s office. She uses the service’s telephones and computers. She is paid $25.50 per hour. Her work contract does not have an end date, although her employer can fire or discipline her for poor performance. Her employment contract states that she is an independent specialist therefore she does not receive overtime pay, getaway pay or public holiday pay.

Fariah thinks she may actually be a staff member and might be entitled to overtime pay, trip pay and public holiday 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 in between Fariah and the sales business and discovers that she is a worker

It does not matter that Fariah signed the employment contract specifying that she is an independent specialist since the realities reveal she is a worker.

The employment standards officer orders the sales service to:

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

– orders the employer to release wage declarations and keep records

Employee or independent professional: Common misunderstandings

An individual may be considered a worker even if:

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

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

– sends billings to the service.

– utilizes their own automobile for work purposes.

Volunteers

Volunteers are not staff members under the ESA. However, the fact that somebody is called a “volunteer” does not determine whether that person is a worker and entitled to the securities of the ESA.

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

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

– the specific views the plan as being 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 family.

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

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