Areas of Law - Ontario

584 Basic Rights and Obligations: Which rules apply to you?

Basic employment law is set out in the Employment Standards Act. The Act sets out an employer's responsibilities and an employee's rights. The Employment Standards Act does not apply to all workers, and has special rules for some workers. It will not apply to you if you are considered an independent contractor instead of an employee, and may not if you are covered by other laws. If you belong to a union generally the proper form is to grieve a violation of the Act.

Employment Standards Act applies to employees not independent contractors
The Employment Standards Act only applies to people who are considered to be employees. It does not protect workers who are considered independent contractors. You are generally considered to be an employee if you have a supervisor who can tell you what to do and how it should be done and if you work only for that employer and are not genuinely in business for yourself.

However, even if you are getting paid for your work, you may be considered an independent contractor if you do not have a supervisor who can say how the work should be done. Instead, an independent contractor is paid to finish a given task or project.

To find out if you are an employee or an independent contractor, you should carefully consider the following factors; keeping in mind that the following factors are not independently conclusive:

Employees usually work at the employer's place of business, while independent contractors may work from their own offices.

Employees are paid regularly, while independent contractors are usually paid for finishing a job and must provide an invoice.

Employees usually work regular hours and days, while independent contractors decide when they will work.

Employees usually work for one employer. Independent contractors on the other hand, may work with one or more companies at a time, and they may have many clients or customers.

Employees are usually hired for an ongoing position or a set period of time, while independent contractors are usually hired to finish a certain project.

Employees usually use tools or equipment provided by the employer, while independent contractors usually bring their own tools or equipment.

Employees usually cannot hire someone to do their job, for example if they have to be away. Independent contractors can usually either hire their own employees, or can arrange for a sub-contractor to do the job.

Employees have their income tax deducted from their wages and submitted by their employer to Revenue Canada, while independent contractors are responsible for calculating and submitting their own income tax.

Employees not covered by the Employment Standards Act
Even if you are considered an employee, you may not be covered by the Employment Standards Act. If you work for the federal government, an airline, or a bank, you are usually considered an employee under federal authority, and you are covered by the Canada Labour Code and not by the Employment Standards Act. The Canada Labour Code has different but usually similar types of provisions.

Professionals and students training to be professionals such as doctors, engineers and teachers, as well as outside sales people who earn commissions from sales made outside their employer's place of business, are not covered by the Employment Standards Act provisions dealing with minimum wage, hours of work, overtime, vacations and statutory holidays.

Rules for union members
If you are a member of a union, there are special rules that apply to you. Usually, the union will have an agreement with your employer that sets out the rules that apply to your employment, and states that a violation of the Employment Standards Act will be grieved. The laws for unionized workers are very different from the laws for non-unionized workers. If you are a member of a union, you can contact your union representative or the local union office for more information about the rules that apply to you.

If you are unsure what laws apply to your employment situation, you can call the Employment Standards office in your area. For legal assistance you should consult with a lawyer. For more information, refer to other sections of Legal Line.

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