5:00 P.m. in the Business's Office
The Employment Standards Act (ESA) applies to staff members.
A staff member includes a person who:
- carries out work for a company for salaries
- materials services to a company for wages
- gets training from a company, if the skill in which the person is being trained is an ability used by the employer's workers
- is a homeworker
- was an employee
Effective March 21, 2024, an employee includes a person who carries out work throughout a trial duration for an employer, if the abilities being assessed throughout the trial period are abilities used by the company's staff members or might be used by staff members if there are no other workers. For example, employment where a company of a restaurant asks a job prospect to work a trial shift waiting tables to show their capability to carry out the task, even where no work deal has actually been made to that candidate, the individual is a worker under the ESA.
The ESA does not use to independent contractors, volunteers or other people who are not covered under the ESA. An individual considered an employee may be entitled to rights such as:
- minimum wage
- overtime pay
- public holidays
- trip with pay
- notice of termination or termination pay
Under the ESA, employers are not permitted to deal with employees covered by the Act as if they are not workers. If a company misclassifies a worker in this method, an employment requirements officer can issue a notice of contravention that results in a penalty, a prosecution or both against the company.
Please note, the ESA provides minimum requirements just. Some employees may have higher rights under an employment contract, cumulative contract, the common law or other legislation.
Discover more about staff member rights under the ESA.
How to inform who is a worker
The relationship between a specific and employment business (or individual) they are working for identifies whether the individual is a worker and entitled to defenses under the ESA. A person may be considered a worker under the ESA when at least a few of the following describes the relationship:
- the work the individual carries out is a fundamental part of the service
- business decides:- what the person is to do
- how much the individual will be paid
- where and when the work is performed
If you're not sure 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 numerous languages. They can offer basic details about who is a worker but can not provide guidance.
If you're still not sure whether someone is an employee, please speak to a legal representative.
How to tell who is an independent specialist
An independent contractor employment is someone who is in service for themselves. A person might be considered an independent contractor, and not covered by the ESA, when a minimum of a few of the following uses:
- business can end the person's agreement for services, but can not discipline the person
- the individual:- has the chance to earn a profit and has a threat of losing money from the work
- identifies how, when or employment where the work is performed
- decides whether to farm out a few of the work
Example
Fariah works as a client 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 utilizes business's telephones and computer . 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 poor efficiency. Her employment agreement mentions that she is an independent professional and so she does not get overtime pay, getaway pay or public vacation pay.
Fariah thinks she may really be a worker and might be entitled to overtime pay, holiday pay and public vacation 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 in between Fariah and the sales business and discovers that she is a worker
It does not matter that Fariah signed the work contract stating that she is an independent contractor because the facts reveal she is a worker.
The work requirements officer orders the sales service to:
- pay Fariah the overtime pay, holiday pay and public vacation pay that she was entitled to as a staff member.
- orders the company to release wage statements and keep records
Employee or independent professional: Common misconceptions
An individual might be thought about a staff member even if:
- the private and the service agree (orally or in writing) that the individual is an independent contractor. It is the relationship in between the individual and business (or employment individual) that matters, not the label that is given to it
- the individual:- charges the harmonized sales tax (HST).
- sends invoices to the service.
- utilizes their own vehicle for work functions.
Volunteers
Volunteers are not workers under the ESA. However, the fact that somebody is called a "volunteer" does not figure out whether that person is a worker and entitled to the defenses of the ESA.
The primary aspects that figure out whether someone is a volunteer or an employee are how much:
- the organization (or employment person) gain from the person's services.
- the individual views the arrangement as remaining in pursuit of a living.
In family-run services, the concern will frequently be whether the individual is supplying services in pursuit of a living or in service of the family.
If the individual is supplying services to the household, instead of services in pursuit of a living, that individual is most likely to be a volunteer.
The truth that no salaries were paid does not always suggest that someone is a volunteer. The reality that there was some kind of payment does not always imply someone is a staff member. For instance, an honorarium may have been paid, rather than wages.