1 5:00 P.m. in the Business's Office

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The Employment Standards Act (ESA) uses to staff members.

An employee consists of an individual who:

- carries out work for an employer for earnings
- products services to a company for salaries
- receives training from an employer, if the ability in which the person is being trained is an ability used by the company's workers
- is a homeworker
- was a worker
Effective March 21, 2024, an employee consists of an individual who carries out work during a trial duration for a company, if the skills being examined throughout the trial duration are skills utilized by the company's employees or elearnportal.science might be used by employees if there are no other employees. For example, where a company of a restaurant asks a task prospect to work a trial shift waiting tables to demonstrate their capability to carry out the task, even where no work deal has been made to that candidate, the person is an employee under the ESA.

The ESA does not apply to independent professionals, volunteers or other people who are not covered under the ESA. A specific considered 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 allowed to treat employees covered by the Act as if they are not staff members. If an employer misclassifies an employee in this way, an employment requirements officer can issue a notification of conflict that leads to a charge, a prosecution or both versus the employer.

Please note, the ESA supplies minimum standards just. Some workers might have greater rights under an employment contract, cumulative agreement, the common law or other legislation.

Discover more about employee rights under the ESA.

How to inform who is a staff member

The relationship between a private and the business (or individual) they are working for identifies whether the person is a staff member and entitled to defenses under the ESA. An individual may be considered a worker under the ESA when a minimum of a few of the following explains the relationship:

- the work the individual performs 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 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 help callers in numerous languages. They can offer general information about who is a staff member but can not offer recommendations.

If you're still not sure whether someone is an employee, please speak to a legal representative.

How to tell who is an independent specialist

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

- business can end the person's agreement for services, but can not discipline the individual
- the individual:- has the opportunity to make an earnings and has a risk of losing money from the work
- determines how, when or where the work is performed
- decides whether to farm out a few of the work


Example

Fariah works as a consumer service representative for a sales business. She should 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 employer can fire or discipline her for bad performance. Her employment agreement states that she is an independent professional therefore she does not get overtime pay, vacation pay or pay.

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

An employment requirements officer investigates her claim. The officer takes a look at the relationship between Fariah and the sales organization and discovers that she is a staff member

It does not matter that Fariah signed the work agreement stating that she is an independent specialist because the facts reveal she is a staff member.

The employment standards officer orders the sales business to:

- pay Fariah the overtime pay, vacation pay and public vacation pay that she was entitled to as a staff member.
- orders the company to issue wage declarations and keep records
Employee or independent professional: Common misconceptions

An individual may be considered an employee even if:

- the specific and the service concur (orally or in writing) that the individual is an independent professional. It is the relationship in between the individual and the service (or individual) that matters, not the label that is provided to it
- the person:- charges the balanced sales tax (HST).
- sends billings to the service.
- uses their own car for work purposes.


Volunteers

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

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

- the business (or individual) advantages from the person's services.
- the individual views the arrangement as remaining in pursuit of a living.
In family-run companies, the question will often be whether the person is providing 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 truth that no salaries were paid does not necessarily imply that someone is a volunteer. The reality that there was some kind of payment does not always mean somebody is a worker. For example, an honorarium might have been paid, rather than salaries.