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The Employment Standards Act (ESA) uses to workers.

An employee consists of a person who:

– performs work for an employer for wages

– materials services to an employer for incomes

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

– is a homeworker

– was an employee

Effective March 21, 2024, a staff member consists of a person who carries out work throughout a trial period for an employer, if the skills being during the trial duration are skills used by the company’s workers or could be used by staff members if there are no other workers. For example, employment where an employer of a dining establishment asks a job prospect to work a trial shift waiting tables to show their capability to perform the job, even where no employment offer has been made to that candidate, the person 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 thought about an employee may be entitled to rights such as:

– minimum wage

– overtime pay

– public holidays

– holiday with pay

– notification of termination or termination pay

Under the ESA, companies are not enabled to treat workers covered by the Act as if they are not staff members. If a company misclassifies a worker in this way, a work requirements officer can release a notification of breach that results in a charge, a prosecution or both versus the employer.

Please note, the ESA supplies minimum standards just. Some staff members may have greater rights under an employment agreement, cumulative contract, the common law or other legislation.

Find out more about worker rights under the ESA.

How to inform who is a staff member

The relationship in between a private and the service (or individual) they are working for employment identifies whether the individual is an employee and entitled to protections under the ESA. An individual may be considered an employee under the ESA when a minimum of a few of the following explains the relationship:

– the work the specific carries out is a vital part of business

– business chooses:- what the person is to do

– how much the individual will be paid

– where and when the work is carried out

If you’re uncertain 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 several languages. They can provide general information about who is a staff member but can not offer recommendations.

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

How to inform who is an independent contractor

An independent specialist 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 some of the following uses:

– business can end the individual’s agreement for services, but can not discipline the individual

– the individual:- has the opportunity to make a profit and has a risk of losing cash from the work

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

– decides whether to subcontract a few of the work

Example

Fariah works as a customer care representative for a sales service. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s workplace. 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 poor performance. Her work agreement specifies that she is an independent contractor therefore she does not receive overtime pay, getaway pay or public holiday pay.

Fariah believes she may actually be a worker and may be entitled to overtime pay, employment vacation pay and public holiday pay. She submits 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 organization and discovers that she is a worker

It does not matter that Fariah signed the employment agreement specifying that she is an independent contractor since the facts reveal she is a worker.

The employment requirements officer orders the sales organization to:

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

– orders the employer to release wage declarations and keep records

Employee or independent contractor: Common misconceptions

A person might be thought about a worker even if:

– the specific and business agree (orally or in writing) that the individual is an independent professional. It is the relationship between the specific and business (or person) that matters, not the label that is given to it

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

– submits invoices to business.

– uses their own lorry for work purposes.

Volunteers

Volunteers are not employees under the ESA. However, the reality that someone is called a “volunteer” does not determine whether that person is a staff member and entitled to the protections of the ESA.

The primary elements that identify whether someone is a volunteer or a staff member are how much:

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

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

In family-run businesses, the question will often be whether the person is supplying services in pursuit of a living or in service of the family.

If the person is supplying services to the household, instead of services in pursuit of a living, that person is more likely to be a volunteer.

The fact that no wages were paid does not necessarily indicate that somebody is a volunteer. The reality that there was some type of payment does not always mean somebody is a staff member. For example, an honorarium may have been paid, rather than incomes.