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The Employment Standards Act (ESA) uses to employees.
A worker includes an individual who:
- carries out work for an employer for salaries
- supplies services to a company for wages
- receives training from a company, if the skill in which the person is being trained is a skill utilized by the company's staff members
- is a homeworker
- was a staff member
Effective March 21, 2024, an employee includes a person who performs work throughout a trial period for an employer, if the skills being evaluated throughout the trial duration are skills utilized by the company's workers or might be utilized by employees if there are no other employees. For example, where a company of a dining establishment asks a job prospect to work a trial shift waiting tables to demonstrate their ability to carry out the task, even where no employment offer has been made to that candidate, the person is a worker under the ESA.
The ESA does not apply to independent specialists, 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
- vacation with pay
- notification of termination or termination pay
Under the ESA, companies are not permitted to treat workers covered by the Act as if they are not workers. If an employer misclassifies an employee in this method, an employment standards officer can issue a notice of breach that leads to a penalty, a prosecution or both against the company.
Please note, the ESA supplies minimum standards just. Some staff members may have greater rights under an employment agreement, collective agreement, the common law or other legislation.
Discover more about employee rights under the ESA.
How to tell who is a worker
The relationship between an individual and business (or person) they are working for figures out whether the person is an and entitled to defenses under the ESA. An individual might be thought about an employee under the ESA when at least a few of the following explains the relationship:
- the work the specific performs is a fundamental part of the organization
- the service chooses:- what the person is to do
- how much the person will be paid
- where and when the work is carried out
If you're not sure 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 assist callers in several languages. They can offer basic info about who is a worker but can not supply suggestions.
If you're still not sure whether someone is a worker, please talk with an attorney.
How to tell who is an independent professional
An independent professional is someone who stays in business on their own. An individual might be thought about an independent professional, and not covered by the ESA, when a minimum of a few of the following applies:
- the company can end the individual's contract for services, but can not discipline the person
- the individual:- 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 performed
- decides whether to farm out some of the work
Example
Fariah works as a customer support representative for a sales business. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's office. She uses business's telephones and computers. 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 agreement states that she is an independent contractor and so she does not get overtime pay, vacation pay or public vacation pay.
Fariah thinks she might actually be a staff member and might be entitled to overtime pay, holiday pay and public vacation pay. She sues with the Ministry of Labour, Immigration, employment Training and Skills Development.
An employment standards officer examines her claim. The officer takes a look at the relationship between Fariah and the sales company and discovers that she is an employee
It does not matter that Fariah signed the employment agreement specifying that she is an independent specialist because the realities reveal she is a worker.
The employment standards officer orders the sales organization to:
- pay Fariah the overtime pay, holiday pay and public holiday pay that she was entitled to as an employee.
- orders the company to issue wage statements and keep records
Employee or independent contractor: Common misconceptions
An individual may be considered an employee even if:
- the private and business agree (orally or in writing) that the individual is an independent professional. It is the relationship in between the specific and the service (or person) that matters, not the label that is provided to it
- the individual:- charges the balanced sales tax (HST).
- sends billings to the organization.
- utilizes their own vehicle for work functions.
Volunteers
Volunteers are not employees under the ESA. However, the truth that someone is called a "volunteer" does not determine whether that individual is a staff member and entitled to the protections of the ESA.
The primary factors that figure out whether somebody is a volunteer or an employee are how much:
- the service (or person) take advantage of the person's services.
- the individual views the arrangement as being in pursuit of a living.
In family-run organizations, the concern will frequently be whether the individual is supplying services in pursuit of a living or in service of the household.
If the person is offering services to the household, 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 mean that somebody is a volunteer. The reality that there was some kind of payment does not necessarily suggest somebody is a staff member. For example, an honorarium might have been paid, instead of incomes.