The Employment Standards Act (ESA) uses to workers.

A staff member includes a person who:

- carries out work for an employer for earnings
- products services to a company for earnings
- gets training from a company, if the skill in which the individual is being trained is an ability used by the employer's employees
- is a homeworker
- was a worker
Effective March 21, 2024, a worker includes a person who performs work during a trial duration for an employer, if the skills being examined during the trial period are skills used by the employer's workers or might be utilized by employees if there are no other staff members. For example, where a company of a dining establishment asks a job prospect to work a trial shift waiting tables to show their capability to perform the job, even where no employment deal has actually been made to that prospect, the individual is an employee under the ESA.

The ESA does not use to independent specialists, employment volunteers or other individuals who are not covered under the ESA. A specific thought about a worker might be entitled to rights such as:

- base pay
- overtime pay
- public holidays
- vacation with pay
- notification of termination or termination pay
Under the ESA, employers are not permitted to treat staff members covered by the Act as if they are not employees. If an employer misclassifies an employee in this method, an employment requirements officer can release a notification of conflict that results in a penalty, a prosecution or both versus the employer.

Please note, the ESA provides minimum standards only. Some employees might have higher rights under an employment agreement, cumulative contract, the typical law or other legislation.

Find out more about staff member rights under the ESA.

How to inform who is a worker

The relationship between a specific and the organization (or person) they are working for figures out whether the individual is an employee and entitled to under the ESA. An individual may be considered a staff member under the ESA when at least a few of the following explains the relationship:

- the work the individual performs is an essential part of the service
- business decides:- what the person is to do
- how much the person will be paid
- where and when the work is performed


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 help callers in several languages. They can provide general details about who is an employee however can not offer advice.

If you're still uncertain whether somebody is an employee, please talk to a lawyer.

How to inform who is an independent professional

An independent professional is somebody who stays in business on their own. A person may be thought about an independent specialist, and not covered by the ESA, employment when a minimum of a few of the following applies:

- business can end the individual's agreement for services, but can not discipline the person
- the person:- has the opportunity to earn a profit and has a danger of losing money from the work
- identifies how, when or where the work is carried out
- chooses whether to farm out some of the work


Example

Fariah works as a customer care agent for a sales company. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's office. She utilizes business's telephones and computers. 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 bad efficiency. Her employment agreement states that she is an independent professional and so she does not receive overtime pay, vacation pay or public holiday pay.

Fariah thinks she may in fact be a worker and might be entitled to overtime pay, holiday pay and public holiday pay. She submits a claim with the Ministry of Labour, Immigration, Training and Skills Development.

A work requirements officer investigates her claim. The officer takes a look at the relationship between Fariah and the sales organization and finds that she is a worker

It does not matter that Fariah signed the employment agreement specifying that she is an independent professional since the realities reveal she is a worker.

The work requirements officer orders the sales organization to:

- pay Fariah the overtime pay, trip pay and public holiday pay that she was entitled to as a worker.
- orders the company to issue wage statements and keep records
Employee or independent specialist: Common misunderstandings

A person might be thought about a worker even if:

- the private and the service agree (orally or in writing) that the person is an independent professional. It is the relationship between the individual and business (or employment person) that matters, not the label that is provided to it
- the person:- charges the harmonized sales tax (HST).
- submits billings to business.
- utilizes their own vehicle for work purposes.


Volunteers

Volunteers are not workers under the ESA. However, the fact that somebody is called a "volunteer" does not determine whether that person is a staff member and entitled to the securities of the ESA.

The primary elements that identify whether somebody is a volunteer or a staff member are just how much:

- the organization (or individual) gain from the person's services.
- the individual views the arrangement as remaining in pursuit of a living.
In family-run services, the question will frequently be whether the person is offering services in pursuit of a living or in service of the household.

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

The fact that no earnings were paid does not necessarily mean that somebody is a volunteer. The truth that there was some kind of payment does not necessarily suggest somebody is a worker. For instance, an honorarium may have been paid, instead of salaries.