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The Employment Standards Act (ESA) uses to staff members.

An employee includes a person who:

- performs work for an employer for earnings

- supplies services to a company for incomes

- receives training from an employer, if the ability in which the person is being trained is a skill utilized by the company's employees

- is a homeworker

- was a staff member


Effective March 21, employment 2024, a staff member consists of an individual who performs work throughout a trial duration for a company, if the abilities being assessed during the trial duration are abilities used by the company's employees or could be utilized by staff members if there are no other employees. For instance, where a company of a restaurant asks a task prospect to work a trial shift waiting tables to demonstrate their ability to perform the job, even where no employment deal has been made to that candidate, the individual is a staff member under the ESA.

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

- minimum wage

- overtime pay

- public holidays

- trip with pay

- notification of termination or termination pay


Under the ESA, companies are not allowed to deal with staff members covered by the Act as if they are not staff members. If a company misclassifies an employee in this way, a work requirements officer can provide a notice of conflict that results in a penalty, a prosecution or both against the company.

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

Find out more about worker rights under the ESA.

How to tell who is a staff member

The relationship in between a specific and the (or person) they are working for determines whether the individual is a staff member and entitled to defenses under the ESA. A person may be thought about a staff member under the ESA when a minimum of some of the following explains the relationship:

- the work the private carries out is a fundamental part of the business

- the service 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 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 help callers in multiple languages. They can provide basic details about who is a staff member however can not offer recommendations.

If you're still uncertain whether somebody is a staff member, please talk to an attorney.

How to tell who is an independent specialist

An independent contractor is someone who is in service on their own. A person might be considered an independent specialist, and not covered by the ESA, when at least some of the following uses:

- the business can end the person's agreement for services, however can not discipline the person

- the individual:- has the opportunity to earn a profit and has a threat of losing cash from the work

- identifies how, when or where the work is performed

- chooses whether to subcontract a few of the work

Example

Fariah works as a consumer 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 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 company can fire or discipline her for poor performance. Her employment contract states that she is an independent specialist and so she does not get overtime pay, holiday pay or public vacation pay.

Fariah thinks she may really be a worker and might be entitled to overtime pay, trip pay and public vacation pay. She files a claim 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 in between Fariah and the sales service and employment finds that she is a staff member

It does not matter that Fariah signed the employment agreement mentioning that she is an independent professional because the facts show she is an employee.

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 employer to release wage statements and employment keep records


Employee or independent contractor: Common misconceptions

An individual might be considered a worker even if:

- the specific and business concur (orally or employment in writing) that the individual is an independent specialist. It is the relationship in between the private and business (or individual) that matters, not the label that is given to it

- the individual:- charges the balanced sales tax (HST).

- submits billings to business.

- utilizes their own vehicle for work purposes.

Volunteers

Volunteers are not employees under the ESA. However, the fact that someone is called a "volunteer" does not figure out whether that person is an employee and employment entitled to the protections of the ESA.

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

- business (or person) gain from the person's services.

- the specific views the arrangement as being in pursuit of a living.


In family-run services, the question will typically be whether the person is providing services in pursuit of a living or in service of the household.

If the individual is supplying services to the family, instead of services in pursuit of a living, that individual is most likely to be a volunteer.

The reality that no salaries were paid does not necessarily indicate that someone is a volunteer. The fact that there was some type of payment does not always suggest someone is an employee. For instance, employment an honorarium might have been paid, instead of salaries.