The Employment Standards Act (ESA) applies to employees.
A worker consists of an individual who:
- carries out work for an employer for salaries
- supplies services to a company for earnings
- gets training from an employer, if the ability in which the individual is being trained is a skill used by the company's workers
- is a homeworker
- was a worker
Effective March 21, 2024, a worker consists of an individual who performs work throughout a trial period for an employer, if the skills being examined during the trial period are skills used by the employer's staff members or might be utilized by workers if there are no other employees. For instance, employment where an employer of a dining establishment asks a job candidate to work a trial shift waiting tables to show their ability to carry out the task, even where no work offer has been made to that candidate, the individual is a worker under the ESA.
The ESA does not use to independent contractors, volunteers or other individuals who are not covered under the ESA. An individual thought about a worker may be entitled to rights such as:
- minimum wage
- overtime pay
- public vacations
- getaway with pay
- notification of termination or termination pay
Under the ESA, employers are not allowed to deal with employees covered by the Act as if they are not workers. If an employer misclassifies an employee in this way, a work requirements officer can release a notification of conflict that leads to a charge, employment a prosecution or both versus the company.
Please note, the ESA provides minimum standards just. Some employees might have greater rights under a work agreement, collective agreement, the common law or other legislation.
Learn more about staff member rights under the ESA.
How to tell who is a staff member
The relationship between an individual and the 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 an employee under the ESA when a minimum of some of the following explains the relationship:
- the work the specific carries out is an essential part of business
- the company decides:- what the individual is to do
- how much the individual will be paid
- where and when the work is carried out
If you're uncertain 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 help callers in several languages. They can offer general information about who is a staff member however can not offer recommendations.
If you're still unsure whether somebody is an employee, please speak to a legal representative.
How to tell who is an independent contractor
An independent contractor is somebody who is in company on their own. An individual might be thought about an independent specialist, and not covered by the ESA, when at least some of the following applies:
- business can end the individual's contract for services, however can not discipline the person
- the person:- has the chance to earn a profit and has a danger of losing money from the work
- identifies how, when or where the work is performed
- chooses whether to farm out a few of the work
Example
Fariah works as a client service representative for a sales business. 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 poor performance. Her employment agreement states that she is an independent contractor therefore she does not get overtime pay, getaway pay or public holiday pay.
Fariah thinks she might really be a staff member and might be entitled to overtime pay, getaway pay and public vacation pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.
A work standards officer examines her claim. The officer takes a look at the relationship between Fariah and the sales company and finds that she is a worker
It does not matter that Fariah signed the employment agreement specifying that she is an independent contractor employment because the facts show she is an employee.
The employment requirements officer orders the sales service to:
- pay Fariah the overtime pay, trip pay and employment public holiday pay that she was entitled to as an employee.
- orders the employer to issue wage declarations and keep records
Employee or independent contractor: Common misconceptions
An individual may be thought about a staff member even if:
- the specific and the business concur (orally or in writing) that the person is an independent professional. It is the relationship between the specific and employment the service (or individual) that matters, not the label that is offered to it
- the individual:- charges the harmonized sales tax (HST).
- sends billings to business.
- uses their own lorry for work purposes.
Volunteers
Volunteers are not staff members under the ESA. However, employment the reality that somebody is called a "volunteer" does not identify whether that person is a staff member and entitled to the protections of the ESA.
The primary aspects that figure out whether somebody is a volunteer or a staff member are how much:
- the organization (or individual) gain from the person's services.
- the individual views the arrangement as being in pursuit of a living.
In family-run organizations, the concern will typically be whether the individual is providing services in pursuit of a living or in service of the household.
If the individual is supplying services to the household, instead of services in pursuit of a living, that individual is most likely to be a volunteer.
The fact that no wages were paid does not necessarily indicate that someone is a volunteer. The truth that there was some kind of payment does not necessarily indicate somebody is a staff member. For example, an honorarium may have been paid, instead of incomes.
