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The Employment Standards Act (ESA) applies to workers.

An employee includes an individual who:

– performs work for an employer for incomes

– supplies services to an employer for incomes

– gets training from an employer, if the skill in which the individual is being trained is an ability utilized by the company’s employees

– is a homeworker

– was a staff member

Effective March 21, 2024, an employee includes a person who performs work during a trial period for a company, if the abilities being evaluated during the trial duration are skills used by the employer’s staff members or could be utilized by workers if there are no other staff members. For instance, where an employer of a restaurant asks a task candidate to work a trial shift waiting tables to demonstrate their ability to carry out the job, employment even where no work deal has been made to that prospect, the individual is a staff member under the ESA.

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

– minimum wage

– overtime pay

– public holidays

– getaway with pay

– notice of termination or termination pay

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

Please note, the ESA provides minimum requirements just. Some employees may have greater rights under an employment agreement, collective arrangement, the common law or other legislation.

Discover more about worker rights under the ESA.

How to inform who is an employee

The relationship in between a specific and business (or person) they are working for employment identifies whether the individual is an employee and entitled to defenses under the ESA. An individual may be thought about a worker under the ESA when at least a few of the following explains the relationship:

– the work the individual performs is a fundamental part of business

– business decides:- what the person is to do

– just how much the person will be paid

– where and when the work is performed

If you’re not sure 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 help callers in several languages. They can provide basic info about who is a worker but can not supply guidance.

If you’re still unsure whether someone is a staff member, 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. An individual may be considered an independent specialist, and not covered by the ESA, when a minimum of some of the following applies:

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

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

– determines how, when or where the work is carried out

– chooses whether to farm out a few of the work

Example

Fariah works as a customer care representative for a sales organization. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service’s office. 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 work contract states that she is an independent contractor therefore she does not get overtime pay, getaway pay or public holiday pay.

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

An employment standards officer investigates her claim. The officer looks at the relationship between Fariah and employment the sales company and discovers that she is a staff member

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

The work requirements officer orders the sales organization to:

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

– orders the company to provide wage statements and keep records

Employee or independent specialist: Common misunderstandings

A person may be thought about a worker even if:

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

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

– sends invoices to the company.

– uses their own car for work functions.

Volunteers

Volunteers are not staff members under the ESA. However, the truth that someone is called a «volunteer» does not figure out whether that person is an employee and entitled to the protections of the ESA.

The main elements that figure out whether someone is a volunteer or a staff member are just how much:

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

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

In family-run services, the concern will typically be whether the individual is supplying services in pursuit of a living or employment in service of the family.

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

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