The Employment Standards Act (ESA) uses to employees.

A staff member of a person who:

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

The ESA does not apply to independent contractors, volunteers or other people who are not covered under the ESA. An individual thought about an employee might be entitled to rights such as:

- base pay
- overtime pay
- public vacations
- trip with pay
- notice of termination or termination pay
Under the ESA, employers are not allowed to treat employees covered by the Act as if they are not staff members. If an employer misclassifies a worker in this way, a work requirements officer can release a notification of conflict that leads to a charge, a prosecution or both versus the company.

Please note, the ESA provides minimum standards just. Some staff members might have greater rights under an employment agreement, collective agreement, the typical law or other legislation.

Discover more about employee rights under the ESA.

How to tell who is a worker

The relationship between a specific and the business (or individual) they are working for identifies whether the individual is a staff member and entitled to protections under the ESA. An individual may be thought about a worker under the ESA when a minimum of some of the following describes the relationship:

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


If you're uncertain 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 several languages. They can offer general info about who is a staff member but can not supply advice.

If you're still not sure whether someone is a staff member, please talk with an attorney.

How to inform who is an independent professional

An independent professional is somebody who stays in business for themselves. An individual may be considered an independent contractor, and not covered by the ESA, when at least some of the following uses:

- the organization 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 threat of losing cash 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 customer support representative for a sales service. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business's office. She utilizes the company's telephones and 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 professional and employment so she does not receive overtime pay, holiday pay or public holiday pay.

Fariah thinks she might in fact be a staff member and might be entitled to overtime pay, getaway pay and employment public vacation pay. She submits a claim with the Ministry of Labour, Immigration, employment Training and Skills Development.

A work requirements officer investigates her claim. The officer looks at the relationship between Fariah and the sales service and finds that she is a staff member

It does not matter that Fariah signed the employment agreement mentioning that she is an independent specialist since the realities show she is an employee.

The work standards officer orders the sales company to:

- pay Fariah the overtime pay, vacation pay and public holiday pay that she was entitled to as an employee.
- orders the employer to provide wage declarations and keep records
Employee or employment independent specialist: Common misunderstandings

An individual may be considered an employee even if:

- the specific and business concur (orally or in composing) that the person is an independent specialist. It is the relationship in between the individual and employment 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 automobile for work functions.


Volunteers

Volunteers are not workers under the ESA. However, employment the truth that someone is called a "volunteer" does not determine whether that person is a staff member and entitled to the defenses of the ESA.

The main factors that figure out whether someone is a volunteer or a staff member are just how much:

- business (or individual) advantages from the individual's services.
- the private views the arrangement as remaining in pursuit of a living.
In family-run businesses, the question will frequently be whether the individual is providing services in pursuit of a living or in service of the household.

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

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