The Employment Standards Act (ESA) applies to workers.

A worker consists of a person who:

- carries out work for a company for incomes
- products services to a company for incomes
- receives training from an employer, if the ability in which the person is being trained is an ability utilized by the employer's employees
- is a homeworker
- was a staff member
Effective March 21, 2024, a staff member consists of an individual who performs work throughout a trial duration for a company, if the skills being assessed throughout the trial duration are abilities used by the employer's employees or might be utilized by staff members if there are no other employees. For instance, where a company of a dining establishment asks a task prospect to work a trial shift waiting tables to show their capability to perform the task, even where no work deal has actually been made to that candidate, the individual is an employee under the ESA.

The ESA does not use to independent professionals, volunteers or other individuals who are not covered under the ESA. A private thought about an employee might be entitled to rights such as:

- minimum wage
- overtime pay
- public holidays
- getaway with pay
- notification of termination or termination pay
Under the ESA, employers 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 way, an employment requirements officer can issue a notification of contravention that leads to a charge, a prosecution or both versus the employer.

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

Find out more about staff member rights under the ESA.

How to tell who is a worker

The relationship in between an individual and the business (or person) they are working for figures out whether the person is an employee and entitled to defenses under the ESA. An individual may be considered a staff member under the ESA when at least a few of the following explains the relationship:

- the work the specific performs is a fundamental part of the business
- the company decides:- what the individual is to do
- just 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 info about who is a worker however can not supply suggestions.

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

How to inform who is an independent contractor

An independent contractor is someone who stays in business on their own. A person might be thought about an independent professional, and employment not covered by the ESA, employment when at least some of the following applies:

- the organization can end the person's agreement for services, however can not discipline the individual
- the person:- has the chance to make a revenue and has a danger of losing money from the work
- figures out how, when or where the work is carried out
- decides whether to subcontract a few of the work


Example

Fariah works as a consumer service agent for a sales organization. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the company's office. 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 employer can fire or discipline her for poor efficiency. Her employment agreement specifies that she is an independent professional and so she does not get overtime pay, holiday pay or public holiday pay.

Fariah believes she might actually be an employee and might be entitled to overtime pay, trip pay and public vacation pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.

A work standards officer investigates her claim. The officer looks at the relationship in between Fariah and the sales business and finds that she is an employee

It does not matter that Fariah signed the employment agreement mentioning that she is an independent specialist because the truths show she is a worker.

The employment requirements officer orders the sales business to:

- pay Fariah the overtime pay, trip pay and public holiday pay that she was entitled to as an employee.
- orders the company to provide wage statements and keep records
Employee or independent specialist: Common misunderstandings

A person might be thought about a worker even if:

- the individual and the business concur (orally or in writing) that the individual is an independent professional. It is the relationship between the private and business (or individual) that matters, not the label that is provided to it
- the individual: the balanced sales tax (HST).
- submits invoices to business.
- uses their own automobile for work purposes.


Volunteers

Volunteers are not staff members under the ESA. However, the reality that somebody is called a "volunteer" does not identify whether that person is a worker and entitled to the securities of the ESA.

The main elements that determine whether somebody is a volunteer or a worker are how much:

- business (or person) benefits from the individual's services.
- the private views the arrangement as remaining in pursuit of a living.
In family-run companies, the question will typically be whether the person is offering services in pursuit of a living or in service of the family.

If the individual is providing services to the household, instead of services in pursuit of a living, that individual is more most likely to be a volunteer.

The truth that no earnings were paid does not necessarily imply that someone is a volunteer. The reality that there was some kind of payment does not always suggest somebody is a worker. For instance, an honorarium may have been paid, instead of salaries.