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The Employment Standards Act (ESA) applies to employees.

A worker includes a person who:

– performs work for an employer for wages

– supplies services to a company for earnings

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

– is a homeworker

– was a worker

Effective March 21, 2024, a staff member includes an individual who carries out work during a trial duration for a company, if the skills being throughout the trial period are skills used by the employer’s employees or could be used by workers if there are no other staff members. For instance, where an employer of a dining establishment asks a task candidate to work a trial shift waiting tables to demonstrate their capability to perform the task, even where no employment deal has been made to that prospect, the person 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 thought about a staff member might be entitled to rights such as:

– base pay

– overtime pay

– public holidays

– vacation with pay

– notice of termination or termination pay

Under the ESA, employers are not enabled to treat employees covered by the Act as if they are not workers. If an employer misclassifies a worker in this method, an employment standards officer can provide a notice of contravention that leads to a charge, a prosecution or both against the employer.

Please note, the ESA offers minimum standards just. Some staff members might have greater rights under an employment agreement, cumulative contract, the typical law or other legislation.

Learn more about worker rights under the ESA.

How to inform who is an employee

The relationship in between a private and business (or individual) they are working for determines whether the individual is an employee and entitled to defenses under the ESA. A person might be thought about a worker under the ESA when at least a few of the following describes the relationship:

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

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

– how much the individual will be paid

– where and when the work is carried out

If you’re not sure 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 multiple languages. They can provide general details about who is an employee but can not offer advice.

If you’re still not sure whether someone is a staff member, please talk to a lawyer.

How to tell who is an independent contractor

An independent specialist is somebody who is in company on their own. An individual may be thought about an independent professional, and not covered by the ESA, when a minimum of some of the following applies:

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

– the person:- has the opportunity to make a profit and has a danger 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 client service agent for a sales business. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business’s workplace. She uses business’s telephones and computers. She is paid $25.50 per hour. Her employment agreement does not have an end date, although her company can fire or discipline her for poor efficiency. Her employment agreement states that she is an independent professional therefore she does not receive overtime pay, vacation pay or public vacation pay.

Fariah believes she may in fact 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 referall.us Skills Development.

A work standards officer investigates her claim. The officer takes a look at the relationship in between Fariah and the sales company and finds that she is a worker

It does not matter that Fariah signed the employment agreement stating that she is an independent contractor because the facts reveal she is an employee.

The employment requirements officer orders the sales organization to:

– pay Fariah the overtime pay, trip pay and public holiday pay that she was entitled to as an employee.

– orders the company to issue wage declarations and keep records

Employee or independent contractor: Common misunderstandings

A person might be thought about an employee even if:

– the private and business concur (orally or in writing) that the individual is an independent specialist. It is the relationship between the individual and business (or person) that matters, not the label that is offered to it

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

– sends billings to the service.

– uses their own vehicle for work purposes.

Volunteers

Volunteers are not employees under the ESA. However, the reality that someone is called a “volunteer” does not figure out whether that person is a staff member and entitled to the protections of the ESA.

The primary factors that figure out whether somebody is a volunteer or a worker are just how much:

– the business (or individual) take advantage of the person’s services.

– the individual views the plan as remaining in pursuit of a living.

In family-run services, the concern will frequently be whether the person is offering services in pursuit of a living or in service of the household.

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

The truth that no earnings were paid does not always imply that somebody is a volunteer. The truth that there was some form of payment does not always suggest somebody is a staff member. For example, an honorarium may have been paid, rather than salaries.