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The Employment Standards Act (ESA) uses to workers.

A staff member includes a person who:

– performs work for an employer for earnings

– materials services to an employer for earnings

– gets training from a company, if the ability in which the person is being trained is a skill utilized by the employer’s employees

– is a homeworker

– was a staff member

Effective March 21, 2024, a staff member consists of a person who performs work throughout a trial period for a company, if the skills being examined during the trial duration are abilities used by the employer’s employees or might be used by workers if there are no other employees. For example, where a company of a restaurant asks a task candidate to work a trial shift waiting tables to show their ability to carry out the job, even where no employment offer has actually been made to that candidate, the individual is a staff member under the ESA.

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

– base pay

pay

– public holidays

– trip with pay

– notification of termination or termination pay

Under the ESA, employers are not allowed to treat workers covered by the Act as if they are not workers. If a company misclassifies an employee in this way, an employment standards officer can provide a notification of conflict that leads to a penalty, a prosecution or both versus the employer.

Please note, the ESA provides minimum standards only. Some workers may have greater rights under an employment agreement, cumulative agreement, the common law or other legislation.

Find out more about staff member rights under the ESA.

How to tell who is a staff member

The relationship in between an individual and the company (or individual) they are working for figures out whether the person is an employee and entitled to defenses under the ESA. An individual might be thought about a worker under the ESA when a minimum of some of the following describes the relationship:

– the work the individual performs is a crucial part of the 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 not sure who is a staff member under the ESA, call the Ministry of Labour, employment 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 basic info about who is an employee but can not supply suggestions.

If you’re still uncertain whether someone is an employee, please speak with a legal representative.

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 at least some of the following applies:

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

– the individual:- has the opportunity to make a revenue and has a threat 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 customer service representative for a sales service. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service’s workplace. She utilizes 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 company can fire or discipline her for poor performance. Her employment agreement mentions that she is an independent professional therefore she does not get overtime pay, employment getaway pay or public vacation pay.

Fariah thinks she may in fact be a staff member and might be entitled to overtime pay, trip pay and public holiday pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.

A work standards officer investigates her claim. The officer looks at the relationship in between Fariah and the sales service and finds that she is a worker

It does not matter that Fariah signed the work agreement specifying that she is an independent professional because the realities reveal she is a staff member.

The employment requirements officer orders the sales organization to:

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

– orders the employer to release wage statements and keep records

Employee or independent specialist: Common misconceptions

A person might be thought about a worker even if:

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

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

– sends invoices to the company.

– uses their own automobile for work functions.

Volunteers

Volunteers are not workers under the ESA. However, the fact that somebody is called a “volunteer” does not identify whether that individual is a worker and entitled to the protections of the ESA.

The primary aspects that figure out whether somebody is a volunteer or a staff member are just how much:

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

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

In family-run services, the question will frequently 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 family, rather than services in pursuit of a living, that individual is more likely to be a volunteer.

The truth that no salaries were paid does not always suggest that someone is a volunteer. The truth that there was some type of payment does not always indicate somebody is a worker. For instance, an honorarium might have been paid, instead of incomes.