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The Employment Standards Act (ESA) uses to workers.
An employee consists of an individual who:
- performs work for an employer for salaries
- products services to a company for salaries
- gets training from a company, if the skill in which the person is being trained is an ability used by the employer's employees
- is a homeworker
- was an employee
Effective March 21, 2024, a worker includes a person who performs work throughout a trial period for a company, if the skills being evaluated during the trial duration are abilities utilized by the company's employees or could be utilized by employees if there are no other staff members. For example, where an employer of a restaurant asks a task candidate to work a trial shift waiting tables to demonstrate their capability to carry out the task, even where no employment deal has been made to that prospect, the individual is a worker under the ESA.
The ESA does not apply to independent professionals, volunteers or other people who are not covered under the ESA. An individual thought about a worker may be entitled to rights such as:
- minimum wage
- overtime pay
- public vacations
- getaway with pay
- notification of termination or termination pay
Under the ESA, companies are not permitted to deal with employees covered by the Act as if they are not employees. If a company misclassifies a staff member in this method, a work requirements officer can a notice of conflict that leads to a penalty, a prosecution or both against the company.
Please note, the ESA offers minimum standards only. Some staff members may have greater rights under an employment agreement, collective contract, the common law or other legislation.
Find out more about staff member rights under the ESA.
How to tell who is an employee
The relationship between a private and the company (or individual) they are working for figures out whether the individual is a staff member and entitled to securities under the ESA. A person may be considered a worker under the ESA when at least some of the following explains the relationship:
- the work the individual carries out is an essential part of business
- the 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 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 provide basic info about who is an employee however can not provide guidance.
If you're still uncertain whether someone is a staff member, please speak to an attorney.
How to inform who is an independent specialist
An independent specialist is somebody who is in organization on their own. 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 person
- the person:- has the chance to make a profit and has a threat of losing money from the work
- determines how, when or where the work is performed
- decides whether to subcontract a few of the work
Example
Fariah works as a client service representative for a sales company. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's office. She uses the business's telephones and computer systems. She is paid $25.50 per hour. Her employment agreement does not have an end date, although her employer can fire or discipline her for bad efficiency. Her employment agreement mentions that she is an independent contractor referall.us therefore she does not get overtime pay, getaway pay or public holiday pay.
Fariah thinks she might in fact be a staff member 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.
An employment standards officer examines her claim. The officer takes a look at the relationship between Fariah and the sales organization and finds that she is a worker
It does not matter that Fariah signed the employment agreement stating that she is an independent specialist due to the fact that the facts show she is a worker.
The work requirements officer orders the sales organization to:
- pay Fariah the overtime pay, holiday pay and public vacation pay that she was entitled to as an employee.
- orders the company to provide wage declarations and keep records
Employee or independent specialist: Common misconceptions
An individual might be thought about a staff member even if:
- the private and the business concur (orally or in writing) that the individual is an independent contractor. It is the relationship in between the private and the service (or individual) that matters, not the label that is provided to it
- the individual:- charges the harmonized sales tax (HST).
- sends billings to business.
- 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 an employee and entitled to the protections of the ESA.
The primary elements that figure out whether someone is a volunteer or an employee are how much:
- business (or person) gain from the individual's services.
- the private views the plan as remaining in pursuit of a living.
In family-run companies, the concern will often be whether the person is providing services in pursuit of a living or in service of the household.
If the person is offering services to the household, instead of services in pursuit of a living, that individual is more most likely to be a volunteer.
The reality that no wages were paid does not necessarily suggest that someone is a volunteer. The reality that there was some kind of payment does not always suggest somebody is a worker. For example, an honorarium may have been paid, rather than wages.
