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

A worker consists of an individual who:

– performs work for an employer for wages

– products services to an employer for wages

– gets training from a company, if the ability in which the individual is being trained is a skill utilized by the company’s staff members

– is a homeworker

– was an employee

Effective March 21, 2024, an employee includes an individual who carries out work throughout a trial period for a company, if the abilities being assessed during the trial period are abilities utilized by the employer’s workers or could be used by workers if there are no other workers. For example, where a company of a dining establishment asks a job candidate to work a trial shift waiting tables to show their capability to carry out the job, even where no work offer has been made to that prospect, the individual is a worker 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 staff member may be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– trip with pay

– notification of termination or termination pay

Under the ESA, companies are not permitted to deal with workers covered by the Act as if they are not staff members. If an employer misclassifies a worker in this way, a work standards officer can release a notice of conflict that results in a charge, a prosecution or both versus the employer.

Please note, the ESA supplies minimum standards only. Some employees may have greater rights under an employment agreement, cumulative arrangement, 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 a private and business (or individual) they are working for identifies whether the individual is a worker and entitled to protections under the ESA. An individual might be thought about a worker under the ESA when a minimum of a few of the following describes the relationship:

– the work the private performs is a vital part of business

– the service decides:- what the individual is to do

– how much the person will be paid

– where and when the work is carried out

If you’re uncertain who is an employee 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 several languages. They can offer basic info about who is an employee but can not provide advice.

If you’re still uncertain whether someone is a staff member, job please speak with a lawyer.

How to inform who is an independent professional

An independent specialist is someone who stays in business for themselves. A person might be considered an independent contractor, and not covered by the ESA, when a minimum of a few of the following uses:

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

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

– figures out how, when or where the work is performed

– chooses whether to subcontract a few of the work

Example

Fariah works as a customer support representative for a sales service. 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 computers. 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 bad performance. Her work contract specifies that she is an independent professional and so she does not get overtime pay, job vacation pay or public vacation pay.

Fariah believes she may really be a staff member and may be entitled to overtime pay, trip pay and public . She files a claim with the Ministry of Labour, Immigration, Training and job Skills Development.

A work requirements officer investigates her claim. The officer looks at the relationship between Fariah and the sales company and finds that she is a staff member

It does not matter that Fariah signed the employment agreement specifying that she is an independent professional due to the fact that the facts show she is a worker.

The work requirements officer orders the sales business to:

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

– orders the company to issue wage statements and keep records

Employee or independent professional: Common misunderstandings

A person may be thought about a worker even if:

– the individual and the company concur (orally or in composing) that the individual is an independent specialist. It is the relationship between the individual and business (or individual) that matters, not the label that is given to it

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

– submits billings to the service.

– uses their own automobile for work functions.

Volunteers

Volunteers are not staff members under the ESA. However, the fact that someone is called a “volunteer” does not determine 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 a worker are just how much:

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

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

In family-run companies, the question will frequently be whether the individual is offering services in pursuit of a living or in service of the family.

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

The truth that no wages were paid does not always mean that someone is a volunteer. The fact that there was some kind of payment does not always indicate somebody is a worker. For example, an honorarium might have been paid, rather than incomes.