Kaymack

5:00 P.m. in the Business’s Office

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

An employee consists of an individual who:

– carries out work for a company for earnings

– products services to a company for salaries

– gets training from an employer, if the ability in which the individual is being trained is an ability used by the employer’s staff members

– is a homeworker

– was an employee

Effective March 21, 2024, a worker includes a person who carries out work during a trial period for an employer, if the skills being assessed throughout the trial period are skills used by the employer’s workers or could be used by employees if there are no other staff members. For instance, where a company of a dining establishment asks a job prospect 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 prospect, the person is an employee under the ESA.

The ESA does not apply to independent professionals, volunteers or other people who are not covered under the ESA. A specific considered a worker may be entitled to rights such as:

– base pay

– overtime pay

– public vacations

– getaway with pay

– notice of termination or termination pay

Under the ESA, employment companies are not allowed to deal with workers covered by the Act as if they are not workers. If a company misclassifies an employee in this method, a work standards officer can release a notification of conflict that leads to a charge, a prosecution or both versus the company.

Please note, the ESA supplies minimum standards only. Some employees may have higher rights under an employment agreement, collective contract, the common law or other legislation.

Discover more about employee rights under the ESA.

How to inform who is a worker

The relationship in between an individual and business (or person) they are working for determines whether the individual is an employee and entitled to securities under the ESA. A person may be thought about a staff member under the ESA when a minimum of a few of the following describes the relationship:

– the work the private carries out is an essential part of business

– the company chooses:- what the individual is to do

– how much the person will be paid

– where and when the work is carried out

If you’re unsure who is an employee under the ESA, call the Ministry of Labour, Immigration, employment 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 give basic info about who is a worker but can not supply guidance.

If you’re still uncertain whether somebody is an employee, employment please talk with an attorney.

How to inform who is an independent specialist

An independent specialist is somebody who stays in business on their own. An individual might be thought about an independent contractor, and not covered by the ESA, when a minimum of a few of the following uses:

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

– the person:- has the opportunity to earn a profit and has a threat of losing cash from the work

– identifies how, when or where the work is performed

– chooses whether to subcontract some of the work

Example

Fariah works as a client service representative for a sales company. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’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 employer can fire or discipline her for poor performance. Her employment agreement states that she is an independent contractor and so she does not receive overtime pay, vacation pay or public vacation pay.

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

An employment requirements officer examines her claim. The officer looks at the relationship in between Fariah and the sales organization and finds that she is an employee

It does not matter that Fariah signed the employment agreement specifying that she is an independent professional since the truths reveal she is a staff member.

The work standards officer orders the sales business to:

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

– orders the employer to provide wage declarations and keep records

Employee or independent professional: Common misconceptions

An individual may be considered a staff member even if:

– the individual and the service agree (orally or in composing) that the individual is an independent professional. It is the relationship in between the individual and the business (or person) that matters, not the label that is given to it

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

– sends invoices to business.

– utilizes their own lorry for work purposes.

Volunteers

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

The main elements that determine whether somebody is a volunteer or a staff member are how much:

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

– the private views the arrangement as being in pursuit of a living.

In family-run services, the question will often be whether the person is providing services in pursuit of a living or in service of the household.

If the individual is offering services to the household, instead of services in pursuit of a living, that individual is most likely to be a volunteer.

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