The Employment Standards Act (ESA) uses to workers.

A staff member includes an individual who:

- carries out work for a company for incomes
- products services to a company for salaries
- receives training from an employer, if the ability in which the person is being trained is a skill utilized by the employer’s employees
- is a homeworker
- was a staff member
Effective March 21, 2024, a staff member consists of an individual who performs work during a trial period for a company, if the abilities being evaluated throughout the trial duration are skills utilized by the employer’s staff members or might be utilized by employees if there are no other staff members. For example, where an employer of a dining establishment asks a task candidate to work a trial shift waiting tables to show their capability to perform the task, even where no work deal has actually 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 private thought about a staff member might be entitled to rights such as:

- minimum wage
- overtime pay
- public holidays
- vacation with pay
- notice of termination or termination pay
Under the ESA, employers are not enabled to deal with employees covered by the Act as if they are not employees. If a company misclassifies a staff member in this method, a work standards officer can issue a notice of contravention that leads to a charge, a prosecution or both against the company.

Please note, the ESA supplies minimum standards just. Some employees might have greater rights under an employment contract, cumulative arrangement, the typical law or other legislation.

Find out more about employee rights under the ESA.

How to tell who is an employee

The relationship between a specific and the service (or person) they are working for determines whether the person is a staff member and entitled to securities under the ESA. An individual might be considered an employee under the ESA when at least a few of the following explains the relationship:

- the work the specific carries out is a vital part of the organization
- business chooses:- what the individual 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 worker 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 give basic details about who is a staff member but can not offer advice.

If you’re still unsure whether someone is an employee, please talk with an attorney.

How to inform who is an independent specialist

An independent contractor is someone who stays in business for themselves. An individual may be considered an independent professional, and not covered by the ESA, when at least some of the following uses:

- the service can end the individual’s contract for services, but can not discipline the individual
- the person:- has the chance to make a revenue and has a risk of losing cash from the work
- identifies how, when or where the work is carried out
- chooses whether to subcontract a few of the work


Example

Fariah works as a customer care 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 the service’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 work agreement specifies that she is an independent specialist and so she does not get overtime pay, vacation pay or public holiday pay.

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

An employment requirements officer examines her claim. The officer takes a look at the relationship between Fariah and the sales business 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 since the truths reveal she is a worker.

The work requirements officer orders the sales service to:

- pay Fariah the overtime pay, getaway pay and public vacation pay that she was entitled to as a worker.
- orders the employer to release wage statements and keep records
Employee or independent contractor: Common misunderstandings

An individual may be thought about an employee even if:

- the individual and business concur (orally or in writing) that the person is an independent specialist. It is the in between the private and the organization (or person) that matters, not the label that is provided to it
- the individual:- charges the harmonized sales tax (HST).
- submits invoices to business.
- uses their own vehicle for work purposes.


Volunteers

Volunteers are not workers under the ESA. However, the truth that someone is called a “volunteer” does not identify whether that person is an employee and entitled to the protections of the ESA.

The primary elements that determine whether somebody is a volunteer or an employee are how much:

- the company (or person) gain from the individual’s services.
- the private views the plan as remaining in pursuit of a living.
In family-run organizations, the question will often be whether the individual is supplying services in pursuit of a living or in service of the family.

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

The truth that no wages were paid does not always suggest that somebody is a volunteer. The truth that there was some type of payment does not necessarily suggest someone is an employee. For instance, an honorarium may have been paid, instead of salaries.