Overview

“Employees” have substantially more rights than “independent contractors”. Many companies try to characterize their employees as independent contractors to avoid respecting their employee’s rights.

You might be considered an employee, under the Employment Standards Act, when at least some of the following describes your work:

• the business provides you with tools, equipment or materials to perform work

• your pay is not affected by the way you do your work (e.g. if you work faster or create a better product, you will not necessarily be paid more)

• you cannot subcontract your work to another person

• the business has the right to suspend, dismiss or otherwise discipline you

• the business decides:

o what you do
o how much you will be paid
o when the work needs to completed by
o how and where you complete your work

You may be considered an independent contractor when at least some of the following describes your work:

• you own and are responsible for some or all of the tools or equipment you use to do your job

• you are in business for yourself, make profit and have a risk of losing money from the work you do

• you determine how and/or where your work is completed

• you can subcontract some of your work

• the business can end your contract for services, but cannot discipline you

You may still be considered an employee even if you:

• agree (verbally or in writing) to be an independent contractor

• charge HST

• submit invoices

• use your own vehicle for work purposes

• don’t have statutory deductions (e.g. tax, CPP, EI) taken from your pay

If you are considered an employee under the Employment Standards Act, you may be entitled to employment rights such as:

• minimum wage

• overtime pay

• public holidays

• vacation with pay

Remember, the Employment Standards Act provides minimum standards only. You may have greater rights under an employment contract, collective agreement, the common law or other legislation.