The Employment Standards Act (ESA) applies to workers.
A staff member consists of a person who:
- performs work for an employer for wages
- supplies services to a company for incomes
- gets training from an employer, if the skill in which the person is being trained is an ability used by the employer's workers
- is a homeworker
- was a staff member
Effective March 21, 2024, an employee consists of an individual who carries out work throughout a trial duration for a company, if the skills being examined during the trial period are abilities utilized by the employer's staff members or could be utilized by employees if there are no other employees. For instance, where an employer of a dining establishment asks a job candidate to work a trial shift waiting tables to demonstrate their capability to carry out the job, even where no employment deal has been made to that prospect, the person is a staff member under the ESA.
The ESA does not apply to independent specialists, volunteers or other individuals who are not covered under the ESA. An individual considered a worker might be entitled to rights such as:
- base pay
- overtime pay
- public holidays
- getaway with pay
- notice of termination or termination pay
Under the ESA, employers are not allowed 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 requirements officer can issue a notice of breach that results in a charge, a or both against the company.
Please note, the ESA supplies minimum requirements just. Some workers may have greater rights under a work agreement, collective contract, the common law or other legislation.
Learn more about employee rights under the ESA.
How to inform who is an employee
The relationship in between a specific and employment business (or person) they are working for determines whether the individual is a staff member and entitled to securities under the ESA. An individual might be thought about a worker under the ESA when a minimum of some of the following describes the relationship:
- the work the individual carries out is a vital part of business
- business chooses:- what the individual is to do
- just how much the person will be paid
- where and when the work is carried out
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 multiple languages. They can give basic information about who is a worker however can not offer recommendations.
If you're still unsure whether someone is a staff member, please speak to a legal representative.
How to inform who is an independent contractor
An independent specialist is somebody who is in service on their own. An individual might be considered an independent contractor, and not covered by the ESA, when a minimum of some of the following uses:
- the service can end the individual's agreement for services, however can not discipline the person
- the person:- has the chance to earn a profit and has a threat 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 service agent for a sales company. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business'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 company can fire or discipline her for bad performance. Her work contract specifies that she is an independent contractor and so she does not get overtime pay, getaway pay or public vacation pay.
Fariah believes she might really be a worker and may be entitled to overtime pay, vacation pay and public vacation 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 service and finds that she is an employee
It does not matter that Fariah signed the employment agreement specifying that she is an independent contractor due to the fact that the realities reveal she is an employee.
The work standards officer orders the sales business to:
- pay Fariah the overtime pay, getaway pay and public holiday pay that she was entitled to as an employee.
- orders the employer to provide wage declarations and keep records
Employee or independent professional: Common mistaken beliefs
A person may be considered an employee even if:
- the individual and business concur (orally or in composing) that the person is an independent contractor. It is the relationship in between the individual and business (or individual) that matters, not the label that is offered to it
- the person:- charges the harmonized sales tax (HST).
- submits invoices to the business.
- utilizes their own vehicle for work functions.
Volunteers
Volunteers are not workers under the ESA. However, the fact that someone is called a "volunteer" does not identify whether that person is a staff member and entitled to the protections of the ESA.
The main elements that identify whether someone is a volunteer or a staff member are just how much:
- the organization (or individual) gain from the individual's services.
- the specific views the plan as remaining in pursuit of a living.
In family-run organizations, the question will frequently be whether the individual is supplying services in pursuit of a living or in service of the family.
If the individual is offering services to the family, rather than services in pursuit of a living, that individual is most likely to be a volunteer.
The reality that no salaries were paid does not always suggest that somebody is a volunteer. The truth that there was some type of payment does not always indicate somebody is a worker. For example, an honorarium might have been paid, instead of incomes.
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5:00 P.m. in Business's Office
Ada Flatt edited this page 2 weeks ago