The Employment Standards Act (ESA) applies to staff members.
An employee includes an individual who:
- performs work for an employer for wages
- supplies services to a company for earnings
- gets training from an employer, if the skill in which the individual is being trained is a skill used by the company's staff members
- is a homeworker
- was an employee
Effective March 21, 2024, a worker includes an individual who performs work throughout a trial period for an employer, if the abilities being evaluated throughout the trial duration are skills used by the employer's workers or employment might be used by employees if there are no other staff members. For instance, where a company of a restaurant asks a job prospect to work a trial shift waiting tables to demonstrate their capability to carry out the task, even where no employment deal has been made to that prospect, the individual is an employee under the ESA.
The ESA does not use to independent contractors, volunteers or other individuals who are not covered under the ESA. A private thought about a staff member may be entitled to rights such as:
- minimum wage
- overtime pay
- public holidays
- getaway with pay
- notification of termination or termination pay
Under the ESA, employers 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 method, an employment standards officer can provide a notification of breach that results in a charge, a prosecution or both versus the company.
Please note, the ESA offers minimum requirements just. Some staff members might have higher rights under an employment agreement, collective agreement, the common law or other legislation.
Discover more about employee rights under the ESA.
How to tell who is an employee
The relationship between a specific and the company (or person) they are working for determines whether the individual is a worker and entitled to protections under the ESA. An individual might be thought about an employee under the ESA when at least a few of the following describes the relationship:
- the work the individual performs is a fundamental part of the business
- the organization chooses:- what the individual is to do
- how much the person will be paid
- where and when the work is carried out
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 help callers in numerous languages. They can give basic details about who is a worker however can not supply advice.
If you're still not sure whether someone is an employee, please talk with an attorney.
How to tell who is an independent professional
An independent contractor is someone who is in business on their own. An individual may be considered an independent professional, and not covered by the ESA, when at least a few of the following uses:
- business can end the person's agreement for services, employment however can not discipline the person
- the individual:- has the chance to make a revenue and has a danger of losing cash from the work
- identifies how, when or where the work is carried out
- decides whether to farm out some of the work
Example
Fariah works as a customer support representative for a sales service. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service's office. She utilizes 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 poor efficiency. Her employment agreement specifies that she is an independent professional therefore she does not get overtime pay, getaway pay or public holiday pay.
Fariah believes she might really be a staff member and may be entitled to overtime pay, trip pay and public holiday pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.
An employment standards officer examines her claim. The officer looks at the relationship between Fariah and the sales company and discovers that she is a worker
It does not matter that Fariah signed the work contract mentioning that she is an independent contractor because the truths reveal she is a staff member.
The work standards officer orders the sales business to:
- pay Fariah the overtime pay, holiday pay and public holiday pay that she was entitled to as a staff member.
- orders the company to provide wage declarations and keep records
Employee or independent contractor: Common misconceptions
An individual may be considered an employee even if:
- the private and the service agree (orally or in composing) that the individual is an independent professional. It is the relationship in between the individual and the organization (or person) 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 purposes.
Volunteers
Volunteers are not staff members under the ESA. However, the reality that someone is called a "volunteer" does not determine whether that person is a staff member and employment entitled to the securities of the ESA.
The main aspects that figure out whether someone is a or a staff member are how much:
- business (or person) advantages from the person's services.
- the private views the arrangement as being in pursuit of a living.
In family-run services, the concern will often be whether the individual is providing services in pursuit of a living or in service of the household.
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 truth that no earnings were paid does not always mean that someone is a volunteer. The reality that there was some type of payment does not necessarily imply somebody is an employee. For instance, an honorarium may have been paid, rather than wages.
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5:00 P.m. in Business's Office
Abby Bancks edited this page 2 weeks ago