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The Employment Standards Act (ESA) applies to employees.

A worker includes an individual who:

– performs work for an employer for salaries

– materials services to an employer for incomes

– receives training from a company, if the ability in which the person is being trained is a skill utilized by the employer’s staff members

– is a homeworker

– was a staff member

Effective March 21, 2024, an employee includes an individual who performs work throughout a trial period for an employer, if the abilities being examined throughout the trial period are abilities utilized by the company’s workers or might be used by employees if there are no other staff members. For instance, where a company of a dining establishment asks a task candidate to work a trial shift waiting tables to demonstrate their ability to carry out the task, referall.us even where no work offer has actually been made to that prospect, the person is an employee under the ESA.

The ESA does not use to independent specialists, volunteers or other individuals who are not covered under the ESA. A private considered a worker may be entitled to rights such as:

– minimum wage

– overtime pay

– public

– vacation 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 workers. If a company misclassifies a worker in this way, an employment requirements officer can release a notification of breach that leads to a penalty, a prosecution or both versus the employer.

Please note, the ESA supplies minimum requirements only. Some workers might have greater rights under a work contract, cumulative arrangement, the common law or other legislation.

Discover more about employee rights under the ESA.

How to tell who is an employee

The relationship in between a specific and the service (or person) they are working for identifies whether the individual is an employee and entitled to defenses under the ESA. An individual might be considered an employee under the ESA when a minimum of a few of the following explains the relationship:

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

– business decides:- what the individual is to do

– just how much the person will be paid

– where and when the work is carried out

If you’re not sure 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 help callers in numerous languages. They can provide general details about who is a staff member however can not offer advice.

If you’re still not sure whether someone is an employee, please talk to a lawyer.

How to tell who is an independent specialist

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

– the organization can end the individual’s contract for services, but can not discipline the individual

– the individual:- has the chance to earn a profit and has a risk of losing cash from the work

– determines how, when or where the work is performed

– decides whether to farm out some of the work

Example

Fariah works as a client service representative for a sales organization. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business’s workplace. She uses the company’s telephones and computer systems. She is paid $25.50 per hour. Her employment contract does not have an end date, although her company can fire or discipline her for poor performance. Her employment contract specifies that she is an independent specialist therefore she does not receive overtime pay, vacation pay or public vacation pay.

Fariah thinks she may actually be an employee and may be entitled to overtime pay, holiday pay and public holiday pay. She sues 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 business and discovers that she is a worker

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

The employment standards officer orders the sales organization to:

– pay Fariah the overtime pay, holiday 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 professional: Common mistaken beliefs

A person may be considered an employee even if:

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

– the person:- charges the balanced sales tax (HST).

– submits billings to business.

– uses their own vehicle for work purposes.

Volunteers

Volunteers are not staff members under the ESA. However, the reality that somebody is called a «volunteer» does not identify whether that person is a staff member and entitled to the securities of the ESA.

The main aspects that figure out whether someone is a volunteer or an employee are how much:

– the business (or person) benefits from the individual’s services.

– the specific views the arrangement as remaining in pursuit of a living.

In family-run companies, the concern will often be whether the individual is offering services in pursuit of a living or in service of the family.

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

The truth that no incomes were paid does not always suggest that somebody is a volunteer. The truth that there was some form of payment does not always mean somebody is an employee. For example, an honorarium might have been paid, instead of incomes.