charmyajob

The Employment Standards Act (ESA) uses to staff members.

A staff member consists of a person who:

- performs work for an employer for earnings
- supplies services to an employer for incomes
- receives training from a company, if the skill in which the person is being trained is a skill used by the employer's employees
- is a homeworker
- was a worker
Effective March 21, 2024, an employee includes a person who performs work during a trial duration for an employer, if the skills being assessed during the trial duration are abilities utilized by the employer's workers or could be utilized by staff members if there are no other employees. For example, where an employer of a restaurant asks a job prospect to work a trial shift waiting tables to demonstrate their ability to carry out the job, job even where no work offer has actually been made to that candidate, the individual is a staff member under the ESA.

The ESA does not use to independent specialists, volunteers or other individuals who are not covered under the ESA. A specific thought about a worker may be entitled to rights such as:

- base pay
- overtime pay
- public holidays
- trip with pay
- notice 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 staff members. If a company misclassifies an employee in this method, a work standards officer can release a notice of breach that leads to a penalty, a prosecution or both versus the employer.

Please note, the ESA supplies minimum requirements just. Some staff members may have greater rights under a work contract, collective arrangement, job the typical law or other legislation.

Discover more about employee rights under the ESA.

How to inform who is an employee

The relationship between a private and the service (or individual) they are working for job identifies whether the person is a worker and entitled to defenses under the ESA. A person might be thought about a staff member under the ESA when a minimum of a few of the following explains the relationship:

- the work the individual performs is a vital part of the service
- business decides:- what the person is to do
- how much the individual 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, 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 offer basic details about who is a staff member but can not offer advice.

If you're still unsure whether somebody is a worker, please speak with a legal representative.

How to tell who is an independent contractor

An independent specialist is somebody who is in business on their own. A person may be thought about an independent professional, and not covered by the ESA, when a minimum of some of the following applies:

- business can end the person's agreement for services, but can not discipline the individual
- the individual:- has the opportunity to make a profit and has a danger of losing money from the work
- identifies how, when or where the work is carried out
- decides whether to subcontract some of the work

Example

Fariah works as a client service agent for a sales organization. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's workplace. She uses the company's telephones and computer systems. She is paid $25.50 per hour. Her employment contract does not have an end date, although her employer can fire or discipline her for poor job performance. Her employment agreement states that she is an independent contractor therefore she does not receive overtime pay, job getaway pay or public holiday pay.

Fariah thinks she may actually be a staff member and might be entitled to overtime pay, getaway pay and public vacation pay. She files a claim with the Ministry of Labour, Immigration, Training and Skills Development.

A work standards officer examines her claim. The officer takes a look at the relationship between Fariah and the sales organization and finds that she is a worker

It does not matter that Fariah signed the employment agreement specifying that she is an independent specialist because the realities reveal she is an employee.

The employment standards officer orders the sales company to:

- pay Fariah the overtime pay, holiday pay and public vacation pay that she was entitled to as a worker.
- orders the company to issue wage declarations and keep records
Employee or independent professional: Common mistaken beliefs

An individual might be considered a worker even if:

- the specific and the company agree (orally or in writing) that the individual is an independent contractor. It is the relationship between the private and the company (or person) that matters, not the label that is provided to it
- the individual:- charges the balanced sales tax (HST).
- sends invoices to business.
- uses their own vehicle for work functions.

Volunteers

Volunteers are not staff members under the ESA. However, the truth that somebody is called a "volunteer" does not figure out whether that person is a worker and entitled to the protections of the ESA.

The main factors that figure out whether someone is a volunteer or an employee are just how much:

- business (or person) take of the individual's services.
- the specific views the plan as being in pursuit of a living.
In family-run companies, the concern will typically be whether the individual is offering services in pursuit of a living or in service of the household.

If the individual is supplying services to the family, instead of services in pursuit of a living, that person is most 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 kind of payment does not necessarily suggest somebody is a worker. For example, an honorarium might have been paid, instead of earnings.