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

A staff member includes a person who:

– carries out work for an employer for salaries

– materials services to a company for incomes

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

– is a homeworker

– was a staff member

Effective March 21, employment 2024, a worker includes a person who performs work during a trial period for a company, if the skills being assessed throughout the trial duration are skills used by the employer’s employees or might be used by staff members if there are no other employees. For instance, where a company of a restaurant asks a task prospect to work a trial shift waiting tables to show their ability to perform the task, even where no employment deal has been made to that prospect, the individual 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. A private considered a worker might be entitled to rights such as:

– minimum wage

– overtime pay

– public vacations

– vacation with pay

– notification of termination or termination pay

Under the ESA, employers are not allowed to treat staff members covered by the Act as if they are not workers. If a company misclassifies a worker in this method, a work standards officer can issue a notification of breach that leads to a charge, a prosecution or employment both against the employer.

Please note, the ESA provides minimum requirements only. Some workers might have higher rights under an employment agreement, cumulative agreement, the common law or other legislation.

Discover more about employee rights under the ESA.

How to inform who is a staff member

The relationship in between a private and employment the organization (or person) they are working for determines whether the person is an employee and entitled to defenses under the ESA. An individual might be considered a worker under the ESA when a minimum of a few of the following describes the relationship:

– the work the individual carries out is a crucial part of business

– the business decides:- 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 unsure 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 assist callers in numerous languages. They can offer basic information about who is an employee but can not supply guidance.

If you’re still not sure whether somebody is a staff member, please talk with a legal representative.

How to tell who is an independent contractor

An independent specialist is somebody who stays in business for themselves. A person might be thought about an independent specialist, and not covered by the ESA, when at least a few of the following uses:

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

– the person:- has the chance to make an earnings and has a risk of losing money from the work

– determines how, when or employment where the work is performed

– chooses whether to farm out some of the work

Example

Fariah works as a customer support agent for a sales company. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service’s office. She uses the business’s telephones and computer systems. She is paid $25.50 per hour. Her work agreement does not have an end date, although her employer can fire or discipline her for bad performance. Her employment agreement specifies that she is an independent contractor and so she does not pay, getaway pay or public vacation pay.

Fariah believes she may actually be a staff member and might be entitled to overtime pay, getaway pay and public holiday pay. She submits 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 in between Fariah and the sales organization and finds that she is a worker

It does not matter that Fariah signed the work agreement specifying that she is an independent specialist due to the fact that the facts reveal she is an employee.

The employment requirements officer orders the sales organization to:

– pay Fariah the overtime pay, getaway 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: Common misunderstandings

A person may be considered a staff member even if:

– the specific and business agree (orally or in composing) that the person is an independent contractor. It is the relationship in between the private and business (or person) that matters, not the label that is offered to it

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

– submits billings to business.

– uses their own automobile for work functions.

Volunteers

Volunteers are not staff members under the ESA. However, the reality that somebody is called a „volunteer“ does not figure out whether that person is a worker and entitled to the defenses of the ESA.

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

– the company (or employment individual) advantages from the individual’s services.

– the specific views the arrangement as remaining in pursuit of a living.

In family-run organizations, the concern will typically be whether the person is providing services in pursuit of a living or in service of the family.

If the person is supplying services to the family, rather than services in pursuit of a living, that person is most likely to be a volunteer.

The truth that no earnings were paid does not always suggest that someone is a volunteer. The reality that there was some type of payment does not always indicate someone is an employee. For instance, an honorarium may have been paid, instead of wages.