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

A staff member consists of an individual who:

- carries out work for a company for earnings
- products services to an employer for wages
- gets training from an employer, if the skill in which the person is being trained is a skill used by the employer's workers
- is a homeworker
- was an employee
Effective March 21, 2024, an employee consists of a person who carries out work during a trial duration for a company, if the abilities being evaluated during the trial period are abilities utilized by the company's employees or employment might be utilized by staff members if there are no other staff members. For example, employment where an employer of a restaurant asks a task candidate to work a trial shift waiting tables to demonstrate their ability to perform the job, even where no work deal has been made to that candidate, the individual is a staff member under the ESA.

The ESA does not apply to independent specialists, volunteers or other people who are not covered under the ESA. A private thought about an employee may be entitled to rights such as:

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

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

Discover more about staff member rights under the ESA.

How to inform who is an employee

The relationship between an individual and employment the organization (or person) they are working for identifies whether the individual is a staff member and entitled to protections under the ESA. A person might be thought about a worker under the ESA when at least some of the following explains the relationship:

- the work the individual carries out is a crucial part of business
- the company decides:- what the person is to do
- just how much the person 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 help callers in multiple languages. They can offer general details about who is a staff member however can not supply recommendations.

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

How to tell who is an independent specialist

An independent professional is someone who stays in business on their own. A person might be thought about an independent specialist, and not covered by the ESA, when at least some of the following uses:

- the service can end the person's contract for services, but can not discipline the person
- the individual:- has the opportunity to earn a profit and has a danger of losing cash from the work
- identifies how, when or where the work is carried out
- chooses whether to subcontract a few of the work

Example

Fariah works as a customer service representative for a sales company. She should work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's workplace. She utilizes the organization's telephones and computer systems. 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 specifies that she is an independent specialist and so she does not receive overtime pay, holiday pay or public holiday pay.

Fariah thinks she may really be an employee and might be entitled to overtime pay, employment getaway pay and public holiday pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.

A work requirements officer examines her claim. The officer looks at the relationship in between Fariah and the sales service and employment finds that she is a worker

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

The employment standards officer orders the sales service to:

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

An individual might be considered an employee even if:

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

Volunteers

Volunteers are not workers under the ESA. However, the reality 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 factors that figure out whether someone is a volunteer or a worker are just how much:

- the service (or individual) take advantage of the individual's services.
- the private views the arrangement as remaining in pursuit of a living.
In family-run businesses, the concern will frequently be whether the person is providing services in pursuit of a living or in service of the family.

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

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