5:00 P.m. in Business’s Office

The Employment Standards Act (ESA) uses to workers.

A worker includes an individual who:

– carries out work for a company for employment earnings

– products services to a company for wages

– gets training from an employer, if the ability in which the individual is being trained is an ability utilized by the company’s staff members

– is a homeworker

– was a staff member

Effective March 21, 2024, a worker consists of a person who performs work throughout a trial duration for a company, if the skills being examined during the trial duration are skills utilized by the employer’s workers or might be utilized by staff members 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 show their ability to perform the job, even where no work deal has actually been made to that prospect, the individual is an employee under the ESA.

The ESA does not use to independent contractors, volunteers or other people who are not covered under the ESA. A private considered an employee might be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– vacation with pay

– notification 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 staff members. If an employer misclassifies a worker in this way, a work requirements officer can issue a notification of contravention that results in a penalty, a prosecution or employment both versus the company.

Please note, the ESA offers minimum standards just. Some staff members may have higher rights under an employment contract, collective agreement, the typical law or other legislation.

Learn more about employee rights under the ESA.

How to inform who is a worker

The relationship in between an individual and the service (or individual) they are working for determines whether the person is an employee and entitled to defenses under the ESA. An individual may be considered a worker under the ESA when a minimum of some of the following describes the relationship:

– the work the specific performs is a vital 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 not sure who is a worker under the ESA, call the Ministry of Labour, employment Immigration, Training and employment 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 info about who is a worker however can not supply guidance.

If you’re still not sure whether somebody is a worker, please talk to an attorney.

How to tell who is an independent professional

An independent professional is somebody who stays in business for themselves. A person may be thought about an independent professional, and not covered by the ESA, when a minimum of a few of the following applies:

– business can end the person’s contract for services, however can not discipline the person

– the person:- has the opportunity to make a revenue and has a risk of losing money from the work

– determines how, when or where the work is performed

– chooses whether to subcontract a few of the work

Example

Fariah works as a client service representative for a sales service. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the organization’s office. She uses the organization’s telephones and computer systems. She is paid $25.50 per hour. Her employment contract does not have an end date, employment although her company can fire or discipline her for poor performance. Her work agreement states that she is an independent specialist and so she does not get overtime pay, holiday pay or public vacation pay.

Fariah believes she might really be an employee 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.

A work standards officer investigates her claim. The officer takes a look at the relationship in between Fariah and the sales business and finds that she is an employee

It does not matter that Fariah signed the employment agreement specifying that she is an independent professional since the facts show she is a staff member.

The employment standards officer orders the sales service to:

– pay Fariah the overtime pay, holiday pay and public holiday pay that she was entitled to as an employee.

– orders the employer to release wage declarations and keep records

Employee or independent contractor: Common misunderstandings

An individual may be considered a worker even if:

– the individual and business concur (orally or in writing) that the individual is an independent specialist. It is the relationship in between the private and the business (or employment individual) that matters, not the label that is offered to it

– the person:- charges the harmonized sales tax (HST).

– submits billings to the company.

– uses their own automobile for employment work purposes.

Volunteers

Volunteers are not employees under the ESA. However, the reality that someone is called a “volunteer” does not figure out whether that individual is a worker and entitled to the protections of the ESA.

The main elements that identify whether someone is a volunteer or a worker are how much:

– the service (or person) gain from the individual’s services.

– the private views the plan as being in pursuit of a living.

In companies, the concern will often be whether the individual is offering services in pursuit of a living or in service of the household.

If the individual is offering services to the household, rather than services in pursuit of a living, that person is more most likely to be a volunteer.

The fact that no wages were paid does not necessarily mean that somebody is a volunteer. The fact that there was some form of payment does not always mean somebody is an employee. For instance, an honorarium may have been paid, instead of incomes.