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The Employment Standards Act (ESA) applies to employees.
A staff member consists of a person who:
– carries out work for an employer for wages
– supplies services to an employer for incomes
– receives training from a company, if the skill in which the person is being trained is an ability used by the employer’s staff members
– is a homeworker
– was a worker
Effective March 21, 2024, a staff member includes an individual who carries out work throughout a trial duration for a company, if the skills being assessed throughout the trial period are abilities used by the company’s staff members or could be utilized by employees 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 capability to carry out the job, even where no employment deal has been made to that candidate, the person is a staff member under the ESA.
The ESA does not apply to independent specialists, volunteers or other individuals who are not covered under the ESA. An individual considered a worker might be entitled to rights such as:
– base pay
– overtime pay
– public holidays
– getaway with pay
– notice of termination or termination pay
Under the ESA, employment employers are not allowed to treat staff members covered by the Act as if they are not workers. If an employer misclassifies a worker in this way, a work standards officer can provide a notification of conflict that leads to a charge, a prosecution or both versus the employer.
Please note, the ESA supplies minimum requirements only. Some workers might have higher rights under an employment agreement, collective arrangement, the typical law or other legislation.
Find out more about staff member rights under the ESA.
How to tell who is a worker
The relationship in between a specific and the service (or individual) they are working for employment determines whether the person is an employee and entitled to defenses under the ESA. A person might be considered an employee under the ESA when a minimum of a few of the following describes the relationship:
– the work the private carries out is a fundamental part of the company
– the business decides:- what the person is to do
– just how much the person will be paid
– where and when the work is carried out
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 help callers in numerous languages. They can provide basic information about who is an employee however can not offer suggestions.
If you’re still uncertain whether somebody is a worker, please speak to a lawyer.
How to inform who is an independent contractor
An independent professional is someone who stays in business on their own. A person may be considered an independent professional, and not covered by the ESA, when a minimum of some of the following applies:
– business can end the individual’s contract for services, however can not the individual
– the individual:- has the opportunity to earn a profit and has a risk of losing money from the work
– figures out how, when or where the work is performed
– decides whether to farm out a few of the work
Example
Fariah works as a client service representative for a sales business. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the company’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 company can fire or discipline her for bad efficiency. Her work agreement states that she is an independent contractor therefore she does not receive overtime pay, vacation pay or public holiday pay.
Fariah believes she may 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 standards officer investigates her claim. The officer takes a look at the relationship in between Fariah and the sales business and employment discovers that she is an employee
It does not matter that Fariah signed the employment agreement stating that she is an independent specialist due to the fact that the realities reveal she is a staff member.
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 worker.
– orders the company to release wage declarations and keep records
Employee or independent contractor: employment Common misunderstandings
A person might be considered a staff member even if:
– the individual and the organization agree (orally or in writing) that the individual is an independent contractor. It is the relationship in between the private and business (or individual) that matters, not the label that is offered to it
– the individual:- charges the balanced sales tax (HST).
– sends billings to the organization.
– uses their own vehicle for work functions.
Volunteers
Volunteers are not staff members under the ESA. However, the fact that somebody is called a “volunteer” does not determine whether that individual is an employee and entitled to the defenses of the ESA.
The main factors that determine whether someone is a volunteer or a worker are just how much:
– the company (or person) gain from the person’s services.
– the specific views the arrangement as being in pursuit of a living.
In family-run organizations, the question will typically be whether the person is offering services in pursuit of a living or in service of the family.
If the individual is offering services to the family, instead of services in pursuit of a living, that individual is most likely to be a volunteer.
The reality that no wages were paid does not necessarily suggest that somebody is a volunteer. The truth that there was some form of payment does not necessarily imply someone is a staff member. For instance, an honorarium might have been paid, instead of salaries.