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The Employment Standards Act (ESA) applies to employees.

A staff member includes a person who:

– performs work for an employer for salaries

– materials services to an employer for job salaries

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

– is a homeworker

– was an employee

Effective March 21, 2024, an employee consists of a person who performs work during a trial duration for a company, if the skills being assessed throughout the trial period are skills used by the company’s workers or could be used by staff members if there are no other staff members. For job instance, where a company of a dining establishment asks a task candidate to work a trial shift waiting tables to show their capability to perform the job, even where no work offer has actually been made to that prospect, the individual is a staff member under the ESA.

The ESA does not apply to independent professionals, volunteers or other individuals who are not covered under the ESA. A private considered a staff member might be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– getaway with pay

– notice of termination or termination pay

Under the ESA, employers are not allowed to deal with workers covered by the Act as if they are not staff members. If a company misclassifies a staff member in this method, job a work standards officer can provide a notice of contravention that results in a charge, a prosecution or both versus the employer.

Please note, the ESA offers minimum requirements only. Some workers might have greater rights under an employment agreement, collective agreement, the typical law or other legislation.

Find out more about staff member rights under the ESA.

How to tell who is a staff member

The relationship in between a specific and the business (or person) they are working for figures out whether the person is a staff member and entitled to protections under the ESA. A person might be considered a staff member under the ESA when a minimum of some of the following explains the relationship:

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

– the service decides:- what the individual is to do

– just how much the individual will be paid

– where and when the work is carried out

If you’re uncertain who is a staff member under the ESA, job 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 basic info about who is a staff member but can not supply suggestions.

If you’re still unsure whether somebody is a staff member, please speak with a lawyer.

How to tell who is an independent professional

An independent specialist is somebody who stays in business on their own. An individual might be thought about an 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 chance to make a profit and has a danger of losing cash from the work

– identifies how, when or where the work is performed

– decides whether to farm out some of the work

Example

Fariah works as a customer support agent for a sales service. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the organization’s workplace. She uses the service’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 bad performance. Her employment agreement specifies that she is an independent specialist therefore she does not receive overtime pay, getaway pay or public vacation pay.

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

An employment requirements officer investigates her claim. The officer takes a look at the relationship in between Fariah and the sales business and finds that she is a worker

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

The employment requirements officer orders the sales company to:

– pay Fariah the overtime pay, vacation pay and job public holiday pay that she was entitled to as a worker.

– orders the company to release wage statements and keep records

Employee or independent specialist: Common misunderstandings

An individual might be considered a staff member even if:

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

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

– submits billings to the organization.

– utilizes their own vehicle for work purposes.

Volunteers

Volunteers are not employees under the ESA. However, the truth that someone is called a “volunteer” does not identify whether that individual is a worker and entitled to the protections of the ESA.

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

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

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

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

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

The truth that no wages were paid does not always suggest that someone is a volunteer. The reality that there was some type of payment does not necessarily mean someone is a worker. For instance, an honorarium might have been paid, rather than wages.