The Employment Standards Act (ESA) applies to employees.
A worker consists of a person who:
- carries out work for an employer for incomes
- products services to a company for incomes
- gets training from an employer, if the skill in which the individual is being trained is a skill used by the employer's employees
- is a homeworker
- was a staff member
Effective March 21, 2024, a staff member consists of an individual who carries out work throughout a trial duration for an employer, if the abilities being examined throughout the trial period are skills utilized by the company's workers or could be used by workers if there are no other workers. For instance, where an employer of a dining establishment asks a job candidate to work a trial shift waiting tables to demonstrate their ability to carry out the task, even where no work offer has been made to that prospect, the person is an employee 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 an employee might be entitled to rights such as:
- base pay
- overtime pay
- public vacations
- trip with pay
- notice of termination or termination pay
Under the ESA, companies are not allowed to deal with workers covered by the Act as if they are not staff members. If a company misclassifies a worker in this way, a work standards officer can provide a notice of conflict that results in a charge, a prosecution or both against the employer.
Please note, the ESA provides minimum requirements just. Some workers might have higher rights under an employment agreement, cumulative agreement, the common law or other legislation.
Find out more about staff member rights under the ESA.
How to tell who is a worker
The relationship between a specific and the service (or person) they are working for figures out whether the individual is a worker and entitled to protections under the ESA. An individual may be considered an employee under the ESA when a minimum of a few of the following describes the relationship:
- the work the individual carries out is a fundamental part of business
- business chooses:- what the individual is to do
- how much the person will be paid
- where and when the work is carried out
If you're unsure 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 offer general details about who is a staff member however can not provide recommendations.
If you're still uncertain whether someone is a staff member, please speak to a lawyer.
How to tell who is an independent specialist
An independent specialist is somebody who stays in business for themselves. A person might be thought about an independent professional, and not covered by the ESA, when at least a few of the following uses:
- business can end the individual's agreement for services, however can not discipline the individual
- the individual:- has the chance to earn a profit and has a danger of losing cash from the work
- figures out how, when or where the work is carried out
- chooses whether to farm out some of the work
Example
Fariah works as a customer support agent for a sales organization. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service's workplace. She uses business's telephones and employment computer systems. 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 performance. Her employment agreement specifies that she is an independent specialist and so she does not receive overtime pay, holiday pay or public holiday pay.
Fariah believes she may really be an employee and might be entitled to overtime pay, trip pay and public holiday pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.
A work requirements officer examines her claim. The officer looks at the relationship between Fariah and the sales service and discovers that she is a worker
It does not matter that Fariah signed the employment contract stating that she is an independent professional due to the fact that the realities show she is a staff member.
The work standards officer orders the sales service to:
- pay Fariah the overtime pay, holiday pay and public holiday pay that she was entitled to as an employee.
- orders the company to issue wage statements and keep records
Employee or independent professional: Common misunderstandings
A person might be thought about a staff member even if:
- the private and business agree (orally or in composing) that the individual is an independent professional. It is the relationship in between the specific and business (or individual) that matters, not the label that is offered to it
- the person:- charges the balanced sales tax (HST).
- sends billings to the company.
- uses their own automobile for work functions.
Volunteers
Volunteers are not staff members under the ESA. However, the truth that someone is called a "volunteer" does not determine whether that individual is an employee 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:
- business (or individual) gain from the person's services.
- the individual views the arrangement as remaining in pursuit of a living.
In family-run companies, the question will frequently be whether the individual is offering services in pursuit of a living or in service of the family.
If the individual is offering services to the household, rather than services in pursuit of a living, that individual is more most likely to be a volunteer.
The fact that no salaries were paid does not necessarily mean that someone is a volunteer. The reality that there was some type of payment does not necessarily indicate somebody is a worker. For instance, an honorarium may have been paid, rather than salaries.
