Rights of employees
The ESA does not apply to independent contractors, volunteers or other individuals who are not covered under the ESA. An individual considered an employee may be entitled to rights such as:
- minimum wage
- overtime pay
- public holidays
- vacation with pay
- notice of termination or termination pay
Under the ESA, employers are not allowed to treat employees covered by the Act as if they are not employees. If an employer misclassifies an employee in this way, an employment standards officer can issue a notice of contravention that results in a penalty, a prosecution or both against the employer.
Please note, the ESA provides minimum standards only. Some employees may have greater rights under an employment contract, collective agreement, the common law or other legislation.
Learn more about employee rights under the ESA.
How to tell who is an employee
The relationship between an individual and the business (or person) they are working for determines whether the individual is an employee and entitled to protections under the ESA. An individual may be considered an employee under the ESA when at least some of the following describes the relationship:
- the work the individual performs is an important part of the business
- the business decides:
- what the individual is to do
- how much the individual will be paid
- where and when the work is performed
- the business provides the individual with tools, equipment or materials to perform the work
- the individual cannot subcontract their work to someone else
- the business has the right to suspend, dismiss or otherwise discipline the individual
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:
- toll-free at 1-800-531-5551
- TTY 1-866-567-8893
The Information Centre can help callers in multiple languages. They can give general information about who is an employee but cannot provide advice.
If you're still unsure whether someone is an employee, please talk to a lawyer.
How to tell who is an independent contractor
An independent contractor is someone who is in business for themselves. An individual may be considered an independent contractor, and not covered by the ESA, when at least some of the following applies:
- the business can end the individual's contract for services, but cannot discipline the individual
- the individual:
- has the opportunity to make a profit and has a risk of losing money from the work
- determines how, when or where the work is performed
- decides whether to subcontract some of the work
Fariah works as a customer service representative for a sales business. She must work Monday to Friday from 9:00 a.m. to 5:00 p.m. in the business's office. She uses the business's telephones and computers. She is paid $25.50 per hour. Her employment contract does not have an end date, although her employer can fire or discipline her for poor performance. Her employment contract states that she is an independent contractor and so she does not receive overtime pay, vacation pay or public holiday pay.
Fariah thinks she might actually be an employee and may be entitled to overtime pay, vacation pay and public holiday pay. She files a claim with the Ministry of Labour, Immigration, Training and Skills Development.
An employment standards officer investigates her claim. The officer looks at the relationship between Fariah and the sales business 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 facts show she is an employee.
The employment standards officer orders the sales business to:
- pay Fariah the overtime pay, vacation pay and public holiday pay that she was entitled to as an employee
- orders the employer to issue wage statements and keep records
Employee or independent contractor: Common misconceptions
An individual may be considered an employee even if:
- the individual and the business agree (orally or in writing) that the individual is an independent contractor. It is the relationship between the individual and the business (or person) that matters, not the label that is given to it
- the individual:
- charges the harmonized sales tax (HST)
- submits invoices to the business
- uses their own vehicle for work purposes
- the business does not make statutory deductions (for example, tax, Canada Pension Plan (CPP) or Employment Insurance (EI) from the person's pay)
- another government agency (for example, the Canada Revenue Agency) determines that the individual is not an employee under their legislation
Volunteers are not employees under the ESA. However, the fact that someone is called a "volunteer" does not determine whether that person is an employee and entitled to the protections of the ESA.
The main factors that determine whether someone is a volunteer or an employee are how much:
- the business (or person) benefits from the individual's services
- the individual views the arrangement as being in pursuit of a living
In family-run businesses, the question will often be whether the individual is providing services in pursuit of a living or in service of the family.
If the person 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 fact that there was some form of payment does not necessarily mean someone is an employee. For example, an honorarium may have been paid, rather than wages.
Interns and trainees
The fact that someone is called an “intern” or a “trainee” does not determine whether that person is an employee and entitled to the protections of the ESA.
Someone called an intern or a trainee will generally be considered to be an employee under the ESA if they:
- receive training from an employer
- are being trained in a skill that is used by the employer's employees
However, the ESA does not apply to an individual who performs work that is under a program approved by a:
- college of applied arts and technology or a university
- career college registered under the Ontario Career Colleges Act, 2005
It also does not apply to a secondary school student who performs work under a work experience program that is authorized by the school board that operates the student’s school.
This encourages employers to provide students enrolled in a college or university program, or in a secondary school work experience program, with practical training that adds to their classroom learning.