The Employment Standards Act (ESA) applies to workers.

A staff member consists of a person who:

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

The ESA does not use to independent professionals, volunteers or other people who are not covered under the ESA. A private considered a worker may be entitled to rights such as:

- base pay
- overtime pay
- public holidays
- vacation with pay
- notice of termination or termination pay
Under the ESA, employers are not allowed to treat workers covered by the Act as if they are not employees. If an employer misclassifies a worker in this way, a work requirements officer can release a notice of contravention that results in a charge, a prosecution or both versus the company.

Please note, the ESA offers minimum requirements just. Some employees might have greater rights under an employment agreement, cumulative arrangement, the typical law or other legislation.

Discover more about staff member rights under the ESA.

How to inform who is a worker

The relationship between a specific and the business (or individual) they are working for figures out whether the individual is a worker and entitled to protections under the ESA. A person might be thought about an employee under the ESA when at least some of the following describes the relationship:

- the work the private carries out is a fundamental part of the organization
- the service decides:- what the person is to do
- just how much the person will be paid
- where and when the work is performed


If you're uncertain 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 multiple languages. They can give basic details about who is a worker however can not provide guidance.

If you're still uncertain whether someone is a worker, please talk to an attorney.

How to tell who is an independent contractor

An independent contractor employment is someone who is in company on their own. A person may be considered an independent contractor, and not covered by the ESA, when a minimum of some of the following uses:

- business can end the person's contract for services, however can not discipline the individual
- the individual:- has the chance to earn a profit and has a threat of losing cash from the work
- figures out how, when or where the work is carried out
- decides whether to subcontract some of the work


Example

Fariah works as a client service 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 workplace. She utilizes business'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 efficiency. Her employment contract specifies that she is an independent contractor therefore she does not receive overtime pay, holiday pay or public vacation pay.

Fariah thinks she might really be a staff member and might be entitled to overtime pay, holiday 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 looks at the relationship in between Fariah and the sales service and discovers that she is a worker

It does not matter that the employment agreement stating that she is an independent professional due to the fact that the facts reveal she is a worker.

The work requirements officer orders the sales organization to:

- pay Fariah the overtime pay, trip pay and public vacation pay that she was entitled to as a worker.
- orders the company to release wage declarations and keep records
Employee or independent contractor: Common misconceptions

A person may be considered a staff member even if:

- the individual and the business agree (orally or in composing) that the person is an independent professional. It is the relationship in between the specific and the business (or individual) that matters, not the label that is provided to it
- the individual:- charges the balanced sales tax (HST).
- submits billings to business.
- utilizes their own lorry for work functions.


Volunteers

Volunteers are not workers 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 defenses of the ESA.

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

- the organization (or individual) gain from the person's services.
- the private views the plan as being in pursuit of a living.
In family-run organizations, the concern will frequently be whether the individual is offering 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 fact that no incomes were paid does not necessarily indicate that someone is a volunteer. The fact that there was some type of payment does not necessarily suggest someone is a staff member. For example, an honorarium may have been paid, instead of incomes.