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The Employment Standards Act (ESA) uses to employees.

A staff member consists of an individual who:

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

The ESA does not apply to independent professionals, volunteers or other individuals who are not covered under the ESA. An individual thought about a staff member may be entitled to rights such as:

- minimum wage
- overtime pay
- public vacations
- getaway with pay
- notification of termination or termination pay
Under the ESA, companies are not permitted to treat employees covered by the Act as if they are not workers. If a company misclassifies a worker in this way, a work requirements officer can release a notice of conflict that results in a charge, a prosecution or both against the employer.

Please note, the ESA supplies minimum requirements only. Some staff members may have higher rights under an employment contract, cumulative contract, the common law or other legislation.

Find out more about worker rights under the ESA.

How to inform who is an employee

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

- the work the private carries out is an essential part of the business
- business decides:- what the individual is to do
- how much the person will be paid
- where and when the work is carried out


If you're unsure who is an employee 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 multiple languages. They can offer basic info about who is a worker but can not provide guidance.

If you're still unsure whether somebody is an employee, please speak with an attorney.

How to inform who is an independent professional

An independent specialist is someone who stays in business for themselves. A person might be considered an independent professional, and not covered by the ESA, when at least some of the following uses:

- business can end the person's contract for employment services, but can not discipline the individual
- the person:- has the chance to make a revenue and has a threat of losing cash from the work
- identifies how, when or where the work is carried out
- decides whether to subcontract some of the work


Example

Fariah works as a customer care agent for a sales service. She needs to work Monday to Friday from 9:00 a.m. to 5:00 p.m. in business's workplace. She uses business's telephones and computer systems. She is paid $25.50 per hour. Her work agreement does not have an end date, although her employer can fire or discipline her for poor performance. Her employment agreement mentions that she is an independent specialist and so she does not receive overtime pay, holiday pay or public vacation pay.

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

A work requirements officer examines her claim. The officer takes a look at the relationship between Fariah and the sales company and discovers that she is an employee

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

The work requirements officer orders the sales organization to:

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

A person might be thought about an employee even if:

- the private and the service agree (orally or in composing) that the individual is an independent specialist. It is the relationship between the specific and business (or person) that matters, not the label that is provided to it
- the individual:- charges the harmonized sales tax (HST).
- submits invoices to the service.
- uses their own car for work purposes.


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 protections of the ESA.

The main elements that identify whether somebody is a volunteer or a staff member are just how much:

- business (or individual) benefits from the person's services.
- the specific views the plan as remaining in pursuit of a living.
In family-run services, the concern will often 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 person is more likely to be a volunteer.

The fact that no wages were paid does not necessarily mean that someone is a volunteer. The reality that there was some kind of payment does not always imply somebody is an employee. For example, an honorarium may have been paid, rather than salaries.