The Employment Standards Act (ESA) uses to employees.

A staff member consists of an individual who:

- carries out work for a company for earnings
- materials services to an employer for earnings
- gets training from a company, if the ability in which the individual is being trained is an ability utilized by the company's workers
- is a homeworker
- was a worker
Effective March 21, 2024, a staff member consists of a person who carries out work during a trial duration for a company, if the skills being examined throughout the trial duration are skills used by the company's employees or could be used by staff members if there are no other staff members. For example, where a company of a dining establishment asks a task candidate to work a trial shift waiting tables to show their ability to perform the task, even where no employment offer has actually been made to that prospect, the individual is a worker under the ESA.

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

- minimum wage
- overtime pay
- public holidays
- vacation with pay
- notice of termination or termination pay
Under the ESA, companies are not enabled to treat employees covered by the Act as if they are not workers. If a company misclassifies an employee in this method, a work requirements officer can release a notice of conflict that results in a penalty, a prosecution or both versus the company.

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

Discover more about employee rights under the ESA.

How to tell who is an employee

The relationship between a private and business (or individual) they are working for determines whether the individual is a worker and entitled to securities under the ESA. An individual may be considered a staff member under the ESA when at least a few of the following describes the relationship:

- the work the specific performs is a fundamental part of the service
- the company decides:- what the person is to do
- how much the person will be paid
- where and when the work is performed


If you're unsure who is a staff member under the ESA, call the Ministry of Labour, Immigration, Training and employment 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 offer general information about who is a worker but can not offer recommendations.

If you're still unsure whether someone is an employee, please speak to a lawyer.

How to inform who is an independent specialist

An independent professional is somebody who is in service on their own. A person might be considered an independent specialist, and not covered by the ESA, when a minimum of some of the following applies:

- the organization can end the individual's agreement for services, however can not discipline the person
- the individual:- has the opportunity to make a profit and has a risk of losing money from the work
- figures out how, when or where the work is carried out
- chooses whether to farm out some 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 service's office. She uses business's telephones and computer systems. She is paid $25.50 per hour. Her work agreement does not have an end date, although her company can fire or discipline her for poor efficiency. Her employment agreement specifies that she is an independent contractor therefore she does not receive overtime pay, vacation pay or public holiday pay.

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

A work requirements officer investigates her claim. The officer takes a look at the relationship between Fariah and the sales service and finds that she is a worker

It does not matter that Fariah signed the employment agreement specifying that she is an independent professional since the facts reveal she is a staff member.

The work standards officer orders the sales company to:

- pay Fariah the overtime pay, vacation pay and public vacation pay that she was entitled to as an employee.
- orders the employer to release wage declarations and keep records
Employee or independent specialist: Common mistaken beliefs

A person may be considered a worker even if:

- the individual and business concur (orally or in writing) that the is an independent contractor. It is the relationship in between the individual and the service (or individual) that matters, not the label that is provided to it
- the person:- charges the harmonized sales tax (HST).
- submits billings to the business.
- utilizes their own vehicle 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 a staff member and entitled to the securities of the ESA.

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

- the service (or person) gain from the individual's services.
- the individual views the arrangement as remaining in pursuit of a living.
In family-run companies, the question will typically be whether the individual is offering 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 truth that no earnings were paid does not necessarily imply that somebody is a volunteer. The reality that there was some type of payment does not always indicate somebody is an employee. For example, employment an honorarium may have been paid, rather than earnings.