The Employment Standards Act (ESA) applies to employees.

A worker consists of an individual who:

- performs work for a company for earnings
- materials services to a company for earnings
- gets training from an employer, if the skill in which the person is being trained is an ability used by the company's employees
- is a homeworker
- was an employee
Effective March 21, 2024, a staff member includes an individual who carries out work during a trial period for employment a company, if the skills being examined throughout the trial duration are skills used by the employer's employees or might be used by staff members if there are no other staff members. For example, where an employer of a restaurant asks a job prospect to work a trial shift waiting tables to show their capability to perform the task, even where no work deal has been made to that candidate, employment the individual is an employee under the ESA.

The ESA does not apply to independent specialists, volunteers or other individuals who are not covered under the ESA. An individual considered a staff member may be entitled to rights such as:

- minimum wage
- overtime pay
- public holidays
- trip with pay
- notice of termination or termination pay
Under the ESA, employers are not permitted to deal with workers covered by the Act as if they are not employees. If a company misclassifies a staff member in this method, an employment standards officer can provide a notification of contravention that leads to a charge, a prosecution or both against the company.

Please note, the ESA provides minimum requirements just. Some staff members might have greater rights under an employment contract, cumulative arrangement, the common law or other legislation.

Learn more about staff member rights under the ESA.

How to tell who is an employee

The relationship between an individual and business (or person) they are working for identifies whether the individual is an employee and entitled to securities under the ESA. An individual may be considered a staff member under the ESA when a minimum of some of the following describes the relationship:

- the work the specific performs is an essential part of the company
- the business chooses:- what the individual is to do
- how much the individual will be paid
- where and when the work is performed


If you're unsure who is a worker 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 numerous languages. They can offer basic details about who is a staff member however can not offer suggestions.

If you're still uncertain whether someone is a worker, please talk with a lawyer.

How to inform who is an independent specialist

An independent contractor 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 some of the following uses:

- business can end the individual's agreement for employment services, however can not discipline the person
- the person:- has the chance to make a revenue and has a risk of losing money from the work
- identifies how, when or where the work is performed
- decides whether to subcontract a few 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 the business's office. She utilizes the service'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 mentions that she is an independent professional and so she does not get overtime pay, holiday pay or public vacation pay.

Fariah believes she might actually be a staff member and might 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.

A work requirements officer investigates her claim. The officer looks at the relationship in between Fariah and the sales service and discovers that she is a worker

It does not matter that Fariah signed the employment agreement mentioning that she is an independent professional due to the fact that the facts show she is an employee.

The employment requirements officer orders the sales service to:

- pay Fariah the overtime pay, getaway pay and public holiday pay that she was entitled to as a worker.
- orders the company to issue wage statements and keep records
Employee or independent contractor: Common misconceptions

A person may be considered a worker even if:

- the private and business agree (orally or in writing) that the person is an independent professional. It is the relationship between the and the business (or individual) that matters, not the label that is given to it
- the person:- charges the balanced sales tax (HST).
- sends billings to business.
- uses their own vehicle for work functions.


Volunteers

Volunteers are not employees under the ESA. However, the fact that someone is called a "volunteer" does not determine whether that person is an employee and entitled to the protections of the ESA.

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

- the company (or individual) gain from the individual's services.
- the private views the arrangement as remaining in pursuit of a living.
In family-run services, the question will often be whether the person is supplying services in pursuit of a living or in service of the family.

If the person 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 truth that no incomes were paid does not always suggest that somebody is a volunteer. The fact that there was some form of payment does not necessarily indicate somebody is a staff member. For example, an honorarium may have been paid, instead of wages.