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The Employment Standards Act (ESA) applies to employees.

An employee consists of a person who:

– carries out work for an employer for earnings

– supplies services to a company for earnings

– receives training from a company, if the skill in which the individual is being trained is a skill utilized by the company’s staff members

– is a homeworker

– was a staff member

Effective March 21, 2024, a staff member includes a person who carries out work during a trial duration for an employer, if the skills being examined throughout the trial period are abilities used by the company’s employees or might be utilized by employees if there are no other staff members. For instance, where a company of a dining establishment asks a job prospect to work a trial shift waiting tables to demonstrate their ability to perform the task, even where no employment deal has actually been made to that candidate, the person is an employee under the ESA.

The ESA does not use to independent professionals, job volunteers or other people who are not covered under the ESA. An individual thought about a worker may be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– holiday with pay

– notice of termination or job termination pay

Under the ESA, employers are not permitted to treat employees covered by the Act as if they are not employees. If an employer misclassifies a worker in this way, an employment requirements officer can issue a notification of contravention that leads to a penalty, a prosecution or both versus the employer.

Please note, the ESA offers minimum standards only. Some employees might have greater rights under an employment agreement, cumulative contract, job the common law or other legislation.

Learn more about worker rights under the ESA.

How to inform who is an employee

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

– the work the specific performs is a crucial part of the business

– business chooses:- what the individual is to do

– just how much the person will be paid

– where and when the work is performed

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 help callers in multiple languages. They can give basic information about who is a worker however can not supply suggestions.

If you’re still unsure whether someone is a staff member, please speak to an attorney.

How to tell who is an independent contractor

An independent contractor job is someone who stays in business on their own. A person may be thought about an independent professional, and not covered by the ESA, when a minimum of a few of the following uses:

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

– the person:- has the chance to make an earnings and has a risk of losing money from the work

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

– decides whether to subcontract a few of the work

Example

Fariah works as a customer support representative for a sales company. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s workplace. She uses business’s telephones and computer systems. 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, trip pay or public vacation pay.

Fariah thinks she might in fact be a staff member and may be entitled to overtime pay, holiday pay and public holiday pay. She files 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 job discovers that she is an employee

It does not matter that Fariah signed the work contract stating that she is an independent specialist since the truths show she is a worker.

The work requirements officer orders the sales business to:

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

– orders the company to provide wage statements and keep records

Employee or independent specialist: Common misconceptions

An individual may be considered an employee even if:

– the specific and the company concur (orally or in composing) that the person is an independent contractor. It is the relationship between the individual and the business (or person) that matters, not the label that is offered to it

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

– sends billings to the business.

– utilizes their own car for work functions.

Volunteers

Volunteers are not employees under the ESA. However, the fact that someone is called a « volunteer » does not determine whether that individual is a worker and entitled to the protections of the ESA.

The main aspects that figure out whether somebody is a or a worker are just how much:

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

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

In family-run organizations, the question will frequently 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 family, rather than services in pursuit of a living, that individual is more most likely to be a volunteer.

The fact that no earnings were paid does not necessarily mean that somebody is a volunteer. The reality that there was some type of payment does not necessarily imply someone is an employee. For job example, an honorarium may have been paid, instead of salaries.