The Employment Standards Act (ESA) applies to employees.

An employee includes a person who:

- carries out work for a company for salaries
- materials services to a company for incomes
- gets training from an employer, if the ability in which the person is being trained is an ability utilized by the company's staff members
- is a homeworker
- was a worker
Effective March 21, 2024, an employee consists of an individual who performs work during a trial duration for job an employer, if the abilities being examined during the trial period are abilities used by the employer's staff members or might be used by workers if there are no other workers. For job instance, where a company of a restaurant asks a job candidate 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 staff member 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 an employee might be entitled to rights such as:

- base pay
- overtime pay
- public holidays
- trip with pay
- notice of termination or termination pay
Under the ESA, employers are not enabled to treat employees covered by the Act as if they are not employees. If an employer misclassifies a worker in this way, an employment requirements officer can release a notice of contravention that leads to a charge, a prosecution or both versus the employer.

Please note, job the ESA provides minimum standards only. Some staff members may have higher rights under an employment contract, cumulative contract, the common law or other legislation.

Discover more about worker rights under the ESA.

How to tell who is a staff member

The relationship between a private and job the service (or individual) they are working for identifies whether the individual is a staff member and entitled to defenses under the ESA. A person may be considered a staff member under the ESA when at least a few of the following describes the relationship:

- the work the specific carries out is a vital part of the organization
- the service decides:- 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 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 general info about who is a worker however can not offer advice.

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

How to inform who is an independent contractor

An independent specialist is someone who stays in business for themselves. An individual might be thought about an independent contractor, and not covered by the ESA, when a minimum of a few of the following uses:

- the service can end the individual's agreement for services, but can not discipline the individual
- the individual:- has the chance to earn a profit and has a threat of losing money from the work
- determines how, when or where the work is performed
- decides whether to farm out a few of the work


Example

Fariah works as a customer care agent for a sales business. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service's workplace. She uses the organization'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 work agreement mentions that she is an independent professional and so she does not get overtime pay, getaway pay or public vacation pay.

Fariah thinks she may in fact be a staff member and may be entitled to overtime pay, vacation pay and public vacation pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.

A work standards officer examines her claim. The officer looks at the relationship between Fariah and job the sales business and discovers that she is a staff member

It does not matter that Fariah signed the work agreement stating that she is an independent specialist due to the fact that the truths reveal she is a staff member.

The work requirements officer orders the sales to:

- pay Fariah the overtime pay, trip pay and public holiday pay that she was entitled to as an employee.
- orders the employer to issue wage statements and keep records
Employee or independent contractor: Common mistaken beliefs

An individual may be thought about an employee even if:

- the specific and the service concur (orally or in composing) that the person is an independent professional. It is the relationship in between the private and business (or individual) that matters, not the label that is provided to it
- the person:- charges the balanced sales tax (HST).
- submits billings to the organization.
- utilizes their own car for work functions.


Volunteers

Volunteers are not staff members under the ESA. However, the truth that someone is called a "volunteer" does not figure out whether that individual is a worker and entitled to the defenses of the ESA.

The primary elements that identify whether someone is a volunteer or an employee are how much:

- the service (or individual) gain from the person's services.
- the individual views the plan as being in pursuit of a living.
In family-run organizations, the question 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 family, rather than services in pursuit of a living, that individual is most likely to be a volunteer.

The truth that no wages were paid does not always imply that somebody is a volunteer. The fact that there was some type of payment does not necessarily indicate someone is an employee. For example, an honorarium might have been paid, instead of earnings.