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

An employee consists of an individual who:

- performs work for an employer for earnings

- supplies services to a company for earnings

- gets training from a company, if the ability in which the individual is being trained is a skill used by the company's employees

- is a homeworker

- was a staff member

Effective March 21, 2024, a staff member includes a person who performs work during a trial duration for a company, if the skills being assessed during the trial duration are abilities utilized by the company's workers or could be utilized by workers if there are no other employees. For instance, where a company of a dining establishment asks a task prospect to work a trial shift waiting tables to show their capability to perform the task, even where no employment offer 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 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 vacations

- trip with pay

- notification of termination or termination pay

Under the ESA, companies are not enabled to deal with workers covered by the Act as if they are not employees. If an employer misclassifies an employee in this method, an employment standards officer can release a notice of conflict that leads to a penalty, a prosecution or both versus the company.

Please note, the ESA provides minimum requirements only. Some staff members may have greater rights under an employment contract, collective contract, the common law or other legislation.

Discover more about employee rights under the ESA.

How to tell who is a staff member

The relationship between a specific and business (or person) they are working for determines whether the person is a worker and entitled to defenses under the ESA. An individual might be considered a worker under the ESA when at least a few of the following describes the relationship:

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

- business decides:- 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 staff member 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 multiple languages. They can provide basic information about who is an employee however can not offer suggestions.

If you're still uncertain whether someone is a worker, please speak to a legal representative.

How to tell who is an independent professional

An independent professional is somebody who stays in business for themselves. A person might be considered an independent contractor, and not covered by the ESA, when at least a few of the following uses:

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

- the person:- has the opportunity to earn a profit and has a danger of losing money from the work

- figures out how, when or where the work is carried out

- decides 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 the business's office. She utilizes 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 employer can fire or discipline her for poor efficiency. Her employment agreement specifies that she is an independent professional therefore she does not get overtime pay, vacation pay or public holiday pay.

Fariah thinks she may really be a worker 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 requirements officer examines her claim. The officer looks 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 agreement specifying that she is an independent specialist because the facts reveal she is a worker.

The employment standards officer orders the sales company to:

- pay Fariah the overtime pay, getaway pay and public holiday pay that she was entitled to as a worker.

- orders the company to issue wage declarations and keep records

Employee or independent professional: Common misunderstandings

A person might be thought about a staff member even if:

- the private and business agree (orally or in composing) that the individual is an independent specialist. It is the relationship in between the individual and the organization (or person) that matters, not the label that is offered to it

- the person:- charges the harmonized sales tax (HST).

- submits invoices to business.

- utilizes their own automobile for work functions.

Volunteers

Volunteers are not employees under the ESA. However, the reality that somebody is called a "volunteer" does not determine whether that individual is a worker and entitled to the defenses of the ESA.

The main elements that figure out whether somebody is a volunteer or a worker are just how much:

- the company (or individual) gain from the individual's services.

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

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

If the person is providing services to the household, 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 necessarily imply that someone is a volunteer. The reality that there was some kind of payment does not necessarily indicate somebody is a staff member. For instance, an honorarium may have been paid, instead of incomes.