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The Employment Standards Act (ESA) applies to staff members.
A worker includes a person who:
- carries out work for an employer for incomes
- supplies services to a company for salaries
- receives training from an employer, if the ability in which the individual is being trained is a skill used by the employer's staff members
- is a homeworker
- was a worker
Effective March 21, 2024, an employee includes an individual who performs work during a trial period for an employer, if the abilities being examined throughout the trial period are abilities utilized by the company's workers or might be used by employees if there are no other employees. For instance, where a company of a dining establishment asks a job candidate to work a trial shift waiting tables to demonstrate their capability to perform the job, even where no work offer has actually been made to that prospect, the person 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 considered a worker may be entitled to rights such as:
- base pay
- overtime pay
- public vacations
- holiday with pay
- notice of termination or termination pay
Under the ESA, employers are not allowed to deal with staff members 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 notification of contravention that leads to a charge, a prosecution or both against the employer.
Please note, the ESA supplies minimum requirements only. Some employees may have higher rights under an employment agreement, cumulative contract, the common law or other legislation.
Learn more about employee rights under the ESA.
How to inform who is a worker
The relationship between an individual and business (or individual) they are working for determines whether the individual is a staff member and entitled to protections under the ESA. A person might be considered an employee under the ESA when at least some of the following describes the relationship:
- the work the individual carries out is a fundamental part of the business
- the service decides:- what the person is to do
- how much the person will be paid
- where and when the work is carried out
If you're not sure 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 several languages. They can provide basic details about who is an employee but can not supply recommendations.
If you're still unsure whether someone is a staff member, please speak to a legal representative.
How to inform who is an independent specialist
An independent specialist is someone who stays in business for themselves. A person may be considered an independent contractor, and not covered by the ESA, when at least a few of the following uses:
- business 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 threat of losing cash from the work
- figures out how, when or where the work is performed
- chooses whether to subcontract a few of the work
Example
Fariah works as a customer support representative for a sales organization. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the organization's workplace. She utilizes the business's telephones and computers. She is paid $25.50 per hour. Her employment contract does not have an end date, although her employer can fire or discipline her for poor efficiency. Her employment agreement states that she is an independent specialist therefore she does not get overtime pay, trip pay or public holiday pay.
Fariah thinks she might really be a staff member and may be entitled to overtime pay, trip pay and public vacation pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.
An employment standards officer investigates her claim. The officer looks at the relationship in between Fariah and the sales organization and discovers that she is a worker
It does not matter that Fariah signed the employment agreement specifying that she is an independent contractor due to the fact that the facts show she is a worker.
The employment requirements officer orders the sales business to:
- pay Fariah the overtime pay, holiday pay and public holiday pay that she was entitled to as a staff member.
- orders the employer to release wage declarations and keep records
Employee or independent specialist: Common misconceptions
A person may be thought about a worker even if:
- the private and the (orally or in writing) that the person is an independent professional. It is the relationship in between the specific and employment business (or person) that matters, not the label that is offered to it
- the person:- charges the harmonized sales tax (HST).
- submits billings to business.
- utilizes their own vehicle for work purposes.
Volunteers
Volunteers are not workers under the ESA. However, the reality that someone is called a "volunteer" does not identify whether that individual is an employee and entitled to the defenses of the ESA.
The main aspects that identify whether someone is a volunteer or a staff member are how much:
- business (or person) gain from the person's services.
- the specific views the arrangement as remaining in pursuit of a living.
In family-run businesses, 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 providing services to the family, instead of services in pursuit of a living, that person is most likely to be a volunteer.
The reality that no earnings were paid does not always suggest that someone is a volunteer. The truth that there was some form of payment does not always indicate someone is a staff member. For instance, an honorarium might have been paid, instead of salaries.