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The Employment Standards Act (ESA) uses to employees.

A worker includes an individual who:

- performs work for a company for wages

- materials services to an employer for salaries

- receives training from an employer, if the ability in which the individual is being trained is an ability used by the company's staff members

- is a homeworker

- was a worker


Effective March 21, 2024, a worker consists of a person who carries out work throughout a trial period for an employer, if the being assessed throughout the trial duration are abilities used by the company's staff members or might be utilized by workers if there are no other employees. For example, where a company of a restaurant asks a job candidate to work a trial shift waiting tables to demonstrate their ability to perform the job, 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. A specific considered a staff member may be entitled to rights such as:

- minimum wage

- overtime pay

- public holidays

- vacation with pay

- notification of termination or termination pay


Under the ESA, companies are not enabled to treat workers covered by the Act as if they are not employees. If a company misclassifies a worker in this method, an employment requirements officer can release a notification of conflict that leads to a charge, a prosecution or both against the employer.

Please note, the ESA provides minimum requirements only. Some employees may have greater rights under an employment contract, cumulative contract, the common law or other legislation.

Find out more about worker rights under the ESA.

How to tell who is a staff member

The relationship between a private and job business (or individual) they are working for identifies whether the person is a staff member and entitled to securities under the ESA. A person may be thought about a worker under the ESA when at least some of the following explains the relationship:

- the work the individual performs is a vital part of the company

- business chooses:- what the individual is to do

- just how much the individual 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 assist callers in multiple languages. They can offer basic info about who is a worker however can not provide suggestions.

If you're still not sure whether somebody is a worker, please speak with an attorney.

How to tell who is an independent professional

An independent specialist is somebody who stays in business on their own. An individual might be thought about an independent contractor, and not covered by the ESA, when a minimum of a few of the following uses:

- the service can end the person's agreement for services, however can not discipline the individual

- the person:- has the opportunity to earn a profit and has a risk of losing cash from the work

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

- decides whether to subcontract 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 the service's office. She utilizes the service'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 job efficiency. Her employment agreement specifies that she is an independent contractor therefore she does not receive overtime pay, holiday pay or public vacation pay.

Fariah believes she might in fact be a worker and may be entitled to overtime pay, vacation pay and public vacation pay. She files a claim 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 company and discovers that she is a worker

It does not matter that Fariah signed the employment contract specifying that she is an independent contractor because the facts reveal she is a worker.

The employment standards officer orders the sales business to:

- pay Fariah the overtime pay, getaway pay and public vacation pay that she was entitled to as a staff member.

- orders the company to issue wage statements and keep records


Employee or independent contractor: Common mistaken beliefs

A person might be thought about an employee even if:

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

- the individual:- charges the balanced sales tax (HST).

- submits billings to the service.

- uses their own lorry 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 person is an employee and entitled to the securities of the ESA.

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

- the business (or individual) gain from the individual's services.

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


In family-run businesses, the question will typically be whether the individual is supplying services in pursuit of a living or in service of the household.

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

The truth that no salaries were paid does not always mean that someone is a volunteer. The fact that there was some kind of payment does not necessarily mean somebody is a worker. For example, an honorarium might have been paid, rather than wages.