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The Employment Standards Act (ESA) uses to workers.

A worker includes a person who:

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

The ESA does not use to independent contractors, volunteers or other people who are not covered under the ESA. A specific thought about a staff member 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, companies are not permitted to deal with employees covered by the Act as if they are not staff members. If a company misclassifies an employee in this way, a work standards officer can release a notification of breach that results in a charge, a prosecution or both versus the company.

Please note, the ESA offers minimum requirements only. Some staff members might have higher rights under a work agreement, cumulative arrangement, the common law or other legislation.

Discover more about staff member rights under the ESA.

How to inform who is a worker

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

- the work the private carries out is a crucial part of the
- the service decides:- what the individual is to do
- just how much the individual 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 assist callers in several languages. They can provide basic info about who is an employee but can not supply recommendations.

If you're still uncertain whether someone is a staff member, please talk with a lawyer.

How to tell who is an independent specialist

An independent specialist is somebody who stays in business on their own. A person might be considered an independent professional, and not covered by the ESA, when at least a few of the following applies:

- business can end the individual's contract for services, however can not discipline the individual
- the person:- has the chance to make a revenue and has a danger of losing cash from the work
- figures out how, when or where the work is carried out
- chooses whether to subcontract a few of the work

Example

Fariah works as a customer care representative for a sales organization. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the service's office. She uses the organization's telephones and computers. She is paid $25.50 per hour. Her work agreement does not have an end date, although her company can fire or discipline her for poor efficiency. Her employment agreement states that she is an independent specialist and so she does not receive overtime pay, vacation pay or public holiday pay.

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

An employment requirements officer investigates her claim. The officer looks at the relationship between Fariah and the sales company and finds that she is a staff member

It does not matter that Fariah signed the employment agreement stating that she is an independent professional since the truths show she is an employee.

The work standards officer orders the sales organization to:

- pay Fariah the overtime pay, trip pay and public holiday pay that she was entitled to as a staff member.
- orders the employer to issue wage declarations and keep records
Employee or independent contractor: Common misunderstandings

An individual might be considered a staff member even if:

- the individual and the company agree (orally or in writing) that the person is an independent contractor. It is the relationship between the individual and business (or individual) that matters, not the label that is offered to it
- the person:- charges the harmonized sales tax (HST).
- sends billings to the company.
- uses their own automobile for work purposes.

Volunteers

Volunteers are not workers under the ESA. However, the truth that somebody is called a "volunteer" does not identify whether that individual is a worker and entitled to the protections of the ESA.

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

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

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

The fact that no earnings were paid does not always suggest that someone is a volunteer. The truth that there was some type of payment does not always suggest somebody is an employee. For example, an honorarium may have been paid, instead of earnings.