The Employment Standards Act (ESA) applies to staff members.
A staff member consists of a person who:
- carries out work for an employer for earnings
- supplies services to a company for incomes
- receives 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 worker consists of an individual who carries out work throughout a trial duration for a company, if the skills being assessed during the trial period are abilities utilized by the company's workers or might be utilized by staff members if there are no other staff members. For example, where an employer of a dining establishment asks a job prospect to work a trial shift waiting tables to demonstrate their capability to carry out the job, even where no work offer has been made to that candidate, the person is an employee 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 a staff member might be entitled to rights such as:
- base pay
- overtime pay
- public holidays
- holiday with pay
- notification of termination or termination pay
Under the ESA, companies are not allowed to deal with workers covered by the Act as if they are not staff members. If an employer misclassifies a worker in this way, a work standards officer can provide a notice of contravention that results in a charge, a prosecution or both versus the company.
Please note, the ESA offers minimum requirements only. Some employees may have greater rights under an employment agreement, collective arrangement, the typical law or other legislation.
Find out more about worker rights under the ESA.
How to tell who is a staff member
The relationship between a specific and the organization (or job individual) they are working for determines whether the individual is an employee and entitled to defenses under the ESA. An individual may be thought about a worker under the ESA when at least some of the following explains the relationship:
- the work the specific performs is a vital part of the company
- the service decides:- what the person is to do
- how much the person will be paid
- where and when the work is carried out
If you're uncertain who is a worker 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 numerous languages. They can provide basic details about who is a staff member but can not provide guidance.
If you're still uncertain whether someone is a staff member, please speak to an attorney.
How to inform who is an independent professional
An independent specialist is someone who is in company for themselves. An individual might be thought about an independent specialist, and not covered by the ESA, when at least a few of the following applies:
- the company can end the person's agreement for services, however can not discipline the individual
- the individual:- has the opportunity to earn a profit and has a threat of losing money from the work
- figures out how, when or where the work is performed
- decides whether to subcontract some 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 organization's workplace. She utilizes business'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 performance. Her employment agreement mentions that she is an independent professional therefore she does not get overtime pay, trip pay or public holiday pay.
Fariah thinks she might in fact be an employee and may be entitled to overtime pay, vacation pay and public holiday pay. She sues with the Ministry of Labour, Immigration, Training and Skills Development.
A work requirements officer investigates her claim. The officer looks at the relationship in between Fariah and the sales organization and finds that she is an employee
It does not matter that Fariah signed the employment contract stating that she is an independent contractor because the truths reveal she is a staff member.
The work requirements officer orders the sales company to:
- pay Fariah the overtime pay, trip pay and job public vacation pay that she was entitled to as a staff member.
- orders the employer to provide wage statements and keep records
Employee or independent professional: Common misconceptions
An individual may be thought about a staff member even if:
- the private and the organization agree (orally or in writing) that the individual is an independent contractor. It is the relationship in between the specific and the service (or person) that matters, not the label that is offered to it
- the individual:- charges the harmonized sales tax (HST).
- sends billings to the service.
- utilizes their own vehicle for work purposes.
Volunteers
Volunteers are not employees under the ESA. However, the truth that somebody is called a "volunteer" does not figure out whether that person is a worker and entitled to the protections of the ESA.
The primary factors that identify whether somebody is a volunteer or a staff member are just how much:
- the service (or person) gain from the person's services.
- the individual views the arrangement as remaining in pursuit of a living.
In family-run services, the concern will typically be whether the person is providing services in pursuit of a living or in service of the household.
If the individual is providing services to the household, rather than services in pursuit of a living, that individual is more likely to be a volunteer.
The reality that no earnings were paid does not always imply that someone is a volunteer. The reality that there was some kind of payment does not necessarily suggest somebody is a worker. For example, an honorarium may have been paid, rather than wages.
