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The Employment Standards Act (ESA) applies to workers.
An employee consists of an individual who:
- performs work for a company for incomes
- supplies services to a company 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 workers
- is a homeworker
- was an employee
Effective March 21, 2024, a worker includes a person who carries out work during a trial duration for an employer, if the skills being assessed throughout the trial duration are abilities used by the employer's staff members or could be utilized by staff members if there are no other employees. For instance, 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 work offer has been made to that candidate, the individual is a worker under the ESA.
The ESA does not use to independent specialists, volunteers or other people who are not covered under the ESA. A specific considered an employee may be entitled to rights such as:
- base pay
- overtime pay
- public vacations
- vacation with pay
- notification of termination or termination pay
Under the ESA, employers are not enabled to deal with workers covered by the Act as if they are not workers. If a company misclassifies a staff member in this way, a work standards officer can issue a notification of conflict that leads to a charge, a prosecution or employment both against the company.
Please note, the ESA provides minimum requirements just. Some employees may have greater rights under an employment agreement, cumulative arrangement, the common law or other legislation.
Learn more about staff member rights under the ESA.
How to tell who is an employee
The relationship between an individual and business (or individual) they are working for identifies whether the individual is an employee and entitled to securities under the ESA. An individual might be considered an employee under the ESA when a minimum of some of the following explains the relationship:
- the work the private performs is a fundamental part of the organization
- business chooses:- what the individual is to do
- just 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 numerous languages. They can give basic information about who is a staff member but can not offer suggestions.
If you're still unsure whether somebody is an employee, please talk with an attorney.
How to inform who is an independent contractor
An independent contractor is someone who is in service on their own. An individual might be considered an independent specialist, and not covered by the ESA, when at least a few of the following uses:
- the business can end the person's contract for services, but can not discipline the person
- the person:- has the opportunity to make an earnings and has a danger of losing money from the work
- determines how, when or where the work is performed
- chooses whether to farm out some of the work
Example
Fariah works as a consumer service agent for a sales company. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's office. She utilizes 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 performance. Her employment agreement states that she is an independent specialist and so she does not receive overtime pay, getaway pay or public vacation pay.
Fariah thinks she might really be an employee and may be entitled to overtime pay, getaway pay and public holiday 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 discovers that she is an employee
It does not matter that Fariah signed the employment agreement mentioning that she is an independent professional since the facts reveal she is a worker.
The work standards officer orders the sales company to:
- pay Fariah the overtime pay, vacation pay and public holiday pay that she was entitled to as a worker.
- orders the employer to release wage statements and keep records
Employee or professional: Common misunderstandings
An individual may be thought about a worker even if:
- the specific and business agree (orally or employment in writing) that the individual is an independent professional. It is the relationship between the private and the company (or individual) that matters, not the label that is provided to it
- the person:- charges the harmonized sales tax (HST).
- sends billings to business.
- utilizes their own vehicle for work functions.
Volunteers
Volunteers are not employees under the ESA. However, the truth that someone is called a "volunteer" does not determine whether that individual is a worker and entitled to the defenses of the ESA.
The primary factors that figure out whether somebody is a volunteer or a worker are how much:
- the organization (or individual) benefits from the individual's services.
- the private views the arrangement as being in pursuit of a living.
In family-run services, 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 providing services to the household, rather than services in pursuit of a living, that individual is most likely to be a volunteer.
The fact that no wages were paid does not necessarily imply that someone is a volunteer. The fact that there was some kind of payment does not necessarily suggest somebody is a worker. For instance, an honorarium may have been paid, instead of salaries.
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