The Employment Standards Act (ESA) applies to employees.
A worker consists of an individual who:
- performs work for an employer for wages
- supplies services to a company for earnings
- gets training from an employer, if the skill in which the individual is being trained is a skill utilized by the company's workers
- is a homeworker
- was a staff member
Effective March 21, 2024, a staff member includes an individual who performs work during a trial period for an employer, if the skills being evaluated throughout the trial period are skills used by the company's workers or might be used by staff members if there are no other staff members. For instance, where an employer of a dining establishment asks a task prospect 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 candidate, the individual is a worker under the ESA.
The ESA does not apply to independent professionals, volunteers or other individuals who are not covered under the ESA. A private thought about a worker may be entitled to rights such as:
- minimum wage
- overtime pay
- public holidays
- holiday with pay
- notification of termination or termination pay
Under the ESA, companies are not permitted to treat workers covered by the Act as if they are not staff members. If an employer misclassifies an employee in this method, an employment standards officer can release a notice of conflict that leads to a charge, a prosecution or both against the company.
Please note, the ESA supplies minimum standards only. Some workers might have greater rights under an employment contract, collective contract, the typical law or other legislation.
Learn more about employee rights under the ESA.
How to inform who is an employee
The relationship in between an individual and business (or individual) they are working for determines whether the individual is a worker and entitled to protections under the ESA. An individual may be thought about a staff member under the ESA when at least some of the following describes the relationship:
- the work the specific performs is a fundamental part of business
- the business chooses:- what the individual is to do
- how much the individual will be paid
- where and when the work is carried out
If you're unsure who is a worker under the ESA, employment 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 help callers in several languages. They can provide basic info about who is an employee however can not offer recommendations.
If you're still unsure whether somebody is an employee, please speak to a lawyer.
How to tell who is an independent professional
An independent professional is someone who stays in business for themselves. A person may be thought about an independent professional, and not covered by the ESA, when at least some of the following applies:
- the company can end the individual's contract for services, but can not discipline the person
- the individual:- has the opportunity to earn a profit and has a danger of losing cash from the work
- determines how, when or where the work is carried out
- chooses whether to subcontract some of the work
Example
Fariah works as a customer service representative for a sales business. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's workplace. She uses the company's telephones and computer systems. 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 work agreement specifies that she is an independent contractor therefore she does not receive overtime pay, getaway pay or public vacation pay.
Fariah believes she might in fact be an employee and may be entitled to overtime pay, getaway pay and public vacation pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.
An employment standards officer investigates her claim. The officer takes a look at the relationship between Fariah and the sales organization and finds that she is an employee
It does not matter that Fariah signed the work contract specifying that she is an independent professional due to the fact that the realities 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 a worker.
- orders the employer to provide wage declarations and keep records
Employee or independent contractor: Common misconceptions
A person might be considered a worker even if:
- the individual and the organization agree (orally or in composing) that the person is an independent professional. It is the relationship between the specific and business (or individual) that matters, not the label that is offered to it
- the individual:- charges the harmonized sales tax (HST).
- submits invoices to the company.
- uses their own lorry for work functions.
Volunteers
Volunteers are not employees under the ESA. However, the reality 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 factors that identify whether somebody is a volunteer or an employee are just how much:
- the service (or person) take advantage of the individual's services.
- the specific views the plan as remaining in pursuit of a living.
In family-run companies, the concern will frequently be whether the person is supplying services in pursuit of a living or in service of the household.
If the person is offering services to the household, rather than services in pursuit of a living, that person is more most likely to be a volunteer.
The fact that no salaries were paid does not necessarily mean that somebody is a volunteer. The reality that there was some form of payment does not always imply somebody is a staff member. For instance, an honorarium might have been paid, instead of salaries.
