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The Employment Standards Act (ESA) applies to workers.

A staff member includes a person who:

- performs work for an employer for incomes
- materials services to an employer for salaries
- gets training from an employer, if the skill in which the individual is being trained is an ability used by the company's employees
- is a homeworker
- was an employee
Effective March 21, 2024, an employee includes an individual who performs work during a trial period for an employer, if the skills being assessed throughout the trial period are skills utilized by the company's employees or might be used by staff members if there are no other employees. For employment instance, where an employer of a dining establishment asks a job prospect to work a trial shift waiting tables to demonstrate their capability to perform the job, even where no employment offer has actually been made to that prospect, 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. A specific considered an employee may be entitled to rights such as:

- minimum wage
- overtime pay
- public vacations
- trip with pay
- notification of termination or termination pay
Under the ESA, employers are not allowed to treat staff members covered by the Act as if they are not staff members. If an employer misclassifies a staff member in this way, a work requirements officer can issue a notice of breach that leads to a penalty, a prosecution or both versus the .

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

Discover more about worker rights under the ESA.

How to tell who is an employee

The relationship between an individual and business (or individual) they are working for determines whether the individual is a worker and entitled to defenses under the ESA. An individual might be thought about an employee under the ESA when at least a few of the following explains the relationship:

- the work the specific carries out is a vital part of the service
- the service chooses:- what the individual is to do
- just how much the individual will be paid
- where and when the work is performed

If you're not sure 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 help callers in numerous languages. They can give basic details about who is an employee however can not supply guidance.

If you're still uncertain whether someone is an employee, please talk with a legal representative.

How to tell who is an independent contractor

An independent specialist is somebody who stays in business for themselves. An individual may be considered 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 services, but can not discipline the individual
- the individual:- has the opportunity to make an earnings and has a threat of losing money from the work
- figures out how, when or where the work is performed
- chooses whether to subcontract a few of the work

Example

Fariah works as a customer care agent for a sales business. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's office. She uses the service'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 bad efficiency. Her work agreement specifies that she is an independent specialist and so she does not receive overtime pay, holiday pay or public holiday pay.

Fariah believes she may in fact be an employee and may be entitled to overtime pay, holiday pay and public vacation pay. She files a claim 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 service and discovers that she is a staff member

It does not matter that Fariah signed the work agreement specifying that she is an independent specialist because the facts reveal she is a worker.

The work standards officer orders the sales organization to:

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

An individual might be thought about a worker even if:

- the individual and business concur (orally or employment in composing) that the individual is an independent contractor. It is the relationship between the private and the business (or individual) that matters, not the label that is offered to it
- the person:- charges the harmonized sales tax (HST).
- sends invoices to the business.
- uses their own lorry for work purposes.

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 main factors that determine whether someone is a volunteer or a staff member are how much:

- business (or person) take advantage of the individual's services.
- the private views the plan as remaining in pursuit of a living.
In family-run organizations, the concern will frequently be whether the individual 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 person is most likely to be a volunteer.

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