5:00 P.m. in the Business's Office

The Employment Standards Act (ESA) applies to employees.

A worker includes a person who:

- carries out work for an employer for earnings

- products services to a company for wages

- gets training from a company, if the ability in which the person is being trained is an ability used by the company's staff members

- is a homeworker

- was a staff member


Effective March 21, 2024, a worker includes a person who performs work during a trial duration for a company, if the abilities being assessed throughout the trial duration are abilities utilized by the company's workers or might be used by employees if there are no other employees. For instance, where an employer of a dining establishment asks a job candidate to work a trial shift waiting tables to show their ability to perform the job, even where no employment offer has actually been made to that candidate, the individual is a worker under the ESA.

The ESA does not use to independent contractors, volunteers or other people who are not covered under the ESA. A specific considered an employee may be entitled to rights such as:

- base pay

- overtime pay

- public holidays

- getaway with pay

- notification of termination or job termination pay


Under the ESA, companies are not enabled to treat staff members covered by the Act as if they are not staff members. If a company misclassifies an employee in this way, an employment standards officer can issue a notice of conflict that leads to a penalty, a prosecution or both against the company.

Please note, the ESA offers minimum requirements just. Some staff members might have greater rights under a work contract, cumulative agreement, the common law or other legislation.

Find out more about staff member rights under the ESA.

How to inform who is a worker

The relationship in between a specific and business (or individual) they are working for determines whether the person is a worker and job entitled to defenses 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 business

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

- just how much the person 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 several languages. They can offer general details about who is a staff member however can not provide guidance.

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

How to inform who is an independent specialist

An independent specialist is someone who is in organization for themselves. A person may be considered an independent specialist, and not covered by the ESA, when a minimum of a few of the following uses:

- the company can end the individual's contract for services, but can not discipline the person

- the person:- has the opportunity to make a revenue and has a threat of losing cash from the work

- figures out how, when or where the work is carried out

- decides whether to farm out some of the work

Example

Fariah works as a customer support representative for a sales organization. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's office. She utilizes the business's telephones and computer . She is paid $25.50 per hour. Her work contract does not have an end date, although her company can fire or discipline her for poor performance. Her work agreement states that she is an independent specialist and job so she does not get overtime pay, getaway pay or public holiday pay.

Fariah believes she might really be an employee and may be entitled to overtime pay, holiday pay and public holiday pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.

An employment requirements officer investigates her claim. The officer looks at the relationship in between Fariah and the sales business and finds that she is a staff member

It does not matter that Fariah signed the employment agreement stating that she is an independent contractor because the realities reveal she is a worker.

The employment standards officer orders the sales company to:

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

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

- the person:- charges the harmonized sales tax (HST).

- sends billings to the company.

- utilizes their own car for work functions.

Volunteers

Volunteers are not workers under the ESA. However, the reality that someone is called a "volunteer" does not identify whether that individual is a worker and entitled to the defenses of the ESA.

The main elements that figure out whether someone is a volunteer or an employee are how much:

- the service (or person) take advantage of the person's services.

- the private views the arrangement as being in pursuit of a living.


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

If the individual is offering services to the family, 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 suggest that somebody is a volunteer. The truth that there was some type of payment does not always indicate somebody is an employee. For example, an honorarium may have been paid, instead of salaries.