The Employment Standards Act (ESA) uses to employees.
An employee includes a person who:
- performs work for a company for salaries
- materials services to a company for salaries
- gets training from an employer, if the skill in which the person is being trained is an ability used by the company's staff members
- is a homeworker
- was a staff member
Effective March 21, 2024, a worker consists of a person who carries out work during a trial period for a company, if the abilities being assessed during the trial period are skills utilized by the company's workers or could be utilized by workers if there are no other employees. For example, where an employer of a dining establishment asks a job prospect to work a trial shift waiting tables to show their ability to carry out the task, even where no has been made to that candidate, the person 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 thought about a worker may be entitled to rights such as:
- base pay
- overtime pay
- public vacations
- vacation with pay
- notice of termination or termination pay
Under the ESA, companies are not allowed to deal with staff members covered by the Act as if they are not employees. If an employer misclassifies a staff member in this way, an employment requirements officer can issue a notification of conflict that leads to a penalty, a prosecution or both against the company.
Please note, the ESA provides minimum standards only. Some employees may have greater rights under an employment agreement, cumulative arrangement, the common law or other legislation.
Discover more about employee rights under the ESA.
How to tell who is a worker
The relationship between an individual and business (or individual) they are working for identifies whether the person is a staff member and entitled to protections under the ESA. An individual may be considered an employee under the ESA when a minimum of some of the following explains the relationship:
- the work the specific performs is an essential part of the service
- the business decides:- what the person is to do
- just 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, employment 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 provide basic information about who is a worker but can not supply advice.
If you're still uncertain whether someone is an employee, please speak to an attorney.
How to inform who is an independent specialist
An independent professional is someone who stays in business on their own. A person may be considered an independent contractor, and not covered by the ESA, when a minimum of a few of the following applies:
- the company can end the person's agreement for services, employment however can not discipline the person
- the individual:- has the chance to earn a profit and has a risk of losing cash from the work
- identifies how, when or where the work is carried out
- chooses whether to farm out some of the work
Example
Fariah works as a client service agent for a sales service. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's office. She uses the service'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 efficiency. Her employment agreement mentions that she is an independent specialist therefore she does not receive overtime pay, trip pay or public holiday pay.
Fariah believes she might in fact be a worker and may be entitled to overtime pay, getaway pay and public vacation pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.
An employment requirements officer examines her claim. The officer takes a look at the relationship in between Fariah and the sales service and finds that she is an employee
It does not matter that Fariah signed the employment contract stating that she is an independent contractor because the truths show she is an employee.
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 worker.
- orders the company to issue wage declarations and keep records
Employee or independent contractor: Common misunderstandings
A person may be considered a worker even if:
- the individual and business agree (orally or in composing) that the person is an independent contractor. It is the relationship in between the specific and business (or person) that matters, not the label that is offered to it
- the individual:- charges the harmonized sales tax (HST).
- submits billings to the organization.
- uses their own lorry for employment work functions.
Volunteers
Volunteers are not staff members under the ESA. However, the reality that somebody is called a "volunteer" does not figure out whether that individual is an employee and employment entitled to the defenses of the ESA.
The primary elements that identify whether someone is a volunteer or a worker are how much:
- business (or person) take advantage of the person's services.
- the specific views the plan as remaining in pursuit of a living.
In family-run companies, the concern will frequently be whether the person is supplying services in pursuit of a living or in service of the household.
If the person is offering services to the family, instead of services in pursuit of a living, that person is more likely to be a volunteer.
The fact that no salaries were paid does not necessarily suggest that someone is a volunteer. The fact that there was some form of payment does not necessarily suggest someone is an employee. For instance, an honorarium may have been paid, instead of earnings.
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5:00 P.m. in the Business's Office
candra04068201 edited this page 2025-02-11 16:49:19 +02:00