The Employment Standards Act (ESA) uses to workers.

An employee includes a person who:

- carries out work for an employer for salaries
- materials services to an employer for wages
- gets training from an employer, if the ability in which the person is being trained is a skill utilized by the employer's workers
- is a homeworker
- was a staff member
Effective March 21, 2024, a staff member includes a person who carries out work during a trial period for a company, if the abilities being evaluated throughout the trial period are skills utilized by the company's employees or might be utilized by workers if there are no other staff members. For instance, where a company of a dining establishment asks a job candidate to work a trial shift waiting tables to demonstrate their capability to carry out the task, even where no employment offer has been made to that prospect, the individual is an employee under the ESA.

The ESA does not apply to independent specialists, volunteers or other individuals who are not covered under the ESA. An individual considered an employee may be entitled to rights such as:

- base pay
- overtime pay
- public vacations
- trip with pay
- notice of termination or termination pay
Under the ESA, companies are not permitted to treat employees covered by the Act as if they are not employees. If a company misclassifies a staff member in this method, an employment standards officer can issue a notification of conflict that leads to a charge, a prosecution or both versus the company.

Please note, the ESA offers minimum requirements just. Some workers may have higher rights under an employment agreement, collective arrangement, the common law or other legislation.

Learn more about worker rights under the ESA.

How to inform who is a staff member

The relationship between an individual and business (or person) they are working for identifies whether the individual is a staff member and entitled to defenses under the ESA. A person might be thought about an employee under the ESA when a minimum of some of the following describes the relationship:

- the work the private carries out is a fundamental part of business
- business chooses:- what the individual is to do
- how much the person will be paid
- where and when the work is carried out


If you're unsure 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 help callers in multiple languages. They can provide general details about who is an employee but can not provide guidance.

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

How to inform who is an independent contractor

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

- business can end the person's contract for services, but can not discipline the individual
- the person:- has the opportunity to make a profit and has a threat of losing money from the work
- figures out how, when or where the work is performed
- chooses whether to farm out some of the work


Example

Fariah works as a client service agent for a sales organization. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the organization's office. She utilizes the service's telephones and employment computer systems. She is paid $25.50 per hour. Her work contract does not have an end date, although her company can fire or discipline her for bad performance. Her employment agreement mentions that she is an independent specialist and so she does not receive overtime pay, getaway pay or public holiday pay.

Fariah thinks she might actually be an employee and might be entitled to overtime pay, holiday pay and public vacation pay. She files a claim with the Ministry of Labour, Immigration, Training and Skills Development.

An employment standards officer investigates her claim. The officer looks at the relationship in between Fariah and the sales business and discovers that she is a staff member

It does not matter that Fariah signed the employment contract specifying that she is an independent contractor since the truths show she is an employee.

The employment standards officer orders the sales business to:

- pay Fariah the overtime pay, holiday pay and public vacation pay that she was entitled to as a worker.
- orders the employer to provide wage statements and keep records
Employee or independent specialist: Common misconceptions

A person might be considered a worker even if:

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


Volunteers

Volunteers are not staff members under the ESA. However, the fact that someone is called a "volunteer" does not identify whether that person is a worker and entitled to the defenses of the ESA.

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

- the service (or individual) take advantage of the person's services.
- the specific views the plan as being in pursuit of a living.
In family-run organizations, the question will often be whether the individual is offering services in pursuit of a living or in service of the household.

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

The truth that no wages were paid does not always imply that someone is a volunteer. The fact that there was some form of payment does not necessarily suggest somebody is an employee. For instance, an honorarium might have been paid, rather than wages.