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

A worker includes an individual who:

- carries out work for an employer for earnings

- materials 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 staff members

- is a homeworker

- was an employee

Effective March 21, 2024, an employee includes a person who carries out work throughout a trial duration for an employer, if the abilities being examined during the trial duration are abilities utilized by the company's employees or might be utilized by employees 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 demonstrate their capability to carry out the job, even where no work offer has actually been made to that prospect, job the person is a worker under the ESA.

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

- base pay

- overtime pay

- public holidays

- holiday with pay

- notice of termination or termination pay

Under the ESA, companies are not enabled to treat staff members covered by the Act as if they are not workers. If an employer misclassifies a worker in this method, an employment standards officer can release a notification of contravention that results in a charge, a prosecution or both versus the employer.

Please note, the ESA supplies minimum requirements only. Some staff members may have higher rights under an employment agreement, cumulative agreement, the typical law or other legislation.

Find out more about employee rights under the ESA.

How to inform who is an employee

The relationship in between an individual and the business (or person) they are working for determines whether the person is a worker and entitled to under the ESA. A person might be considered a worker under the ESA when a minimum of a few of the following explains the relationship:

- the work the private carries out is a vital part of business

- the service chooses:- what the person is to do

- how much the person will be paid

- where and when the work is performed

If you're not sure who is a staff member under the ESA, call the Ministry of Labour, Immigration, Training and job 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 multiple languages. They can give basic info about who is an employee however can not supply guidance.

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

How to tell who is an independent specialist

An independent specialist is someone who is in organization for themselves. A person may be considered an independent specialist, and not covered by the ESA, when a minimum of some of the following uses:

- business can end the individual's contract for services, but can not discipline the individual

- the individual:- has the opportunity to earn a profit and has a danger of losing cash from the work

- determines how, when or where the work is performed

- decides whether to subcontract a few of the work

Example

Fariah works as a client service agent for job a sales organization. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service's workplace. She utilizes the organization'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 efficiency. Her employment agreement states that she is an independent contractor and so she does not get overtime pay, trip pay or public holiday pay.

Fariah believes she may in fact be a worker and job might be entitled to overtime pay, trip pay and public holiday pay. She files a claim with the Ministry of Labour, Immigration, Training and Skills Development.

A work standards officer examines her claim. The officer looks at the relationship in between Fariah and the sales service and finds that she is a staff member

It does not matter that Fariah signed the employment agreement stating that she is an independent contractor since the realities show she is an employee.

The employment standards officer orders the sales service to:

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

- orders the employer to issue wage statements and keep records

Employee or independent specialist: Common misconceptions

An individual may be considered a worker even if:

- the private and the organization concur (orally or in writing) that the individual is an independent professional. It is the relationship in between the specific and the service (or person) that matters, not the label that is offered to it

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

- sends invoices to business.

- uses their own car for job work purposes.

Volunteers

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

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

- the business (or person) advantages from the individual's services.

- the specific views the plan 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 job in service of the family.

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

The fact that no incomes were paid does not necessarily mean that someone is a volunteer. The truth that there was some form of payment does not necessarily mean somebody is an employee. For instance, an honorarium might have been paid, rather than salaries.