Table of Contents | Print this page

Questions about the Misclassification of Employees

What exactly does this provision do?

The new law – the Fair Workplaces, Better Jobs Act, 2017 – added a prohibition to the Employment Standards Act, 2000 (ESA) against misclassifying employees. Employers are now prevented from misclassifying or treating an employee as if that person was not an employee under the ESA. For example, an employer cannot treat an employee as an independent contractor, volunteer, unpaid intern or any other type of worker and therefore deny them their rights under the ESA.

Why is this significant?

It’s significant because the ESA only applies to employees and employers. This means that independent contractors, volunteers, unpaid interns or any other type of worker that does not meet the definition of “employee” in the ESA is not entitled to the minimum rights and standards set out in the ESA.

By preventing employers from misclassifying or treating employees as if they were not employees, this provision helps to ensure that employees receive their minimum rights and standards under the ESA.

How is the new provision different from the existing provisions in the ESA?

Prior to November 27, 2017, there was no stand-alone provision to prevent employers from treating or misclassifying employees as independent contractors, volunteers, unpaid interns or any other type of worker. However, employers were and continue to be prohibited from denying employees their rights under the ESA.

I am an employer. The person who works for me agreed that they would be an independent contractor/volunteer/unpaid intern, etc. Does this matter?

No. If the relationship is a true employee-employer relationship, it does not matter if the employer and the person performing work or providing services agreed to be classified and treated as an independent contractor, volunteer, unpaid intern or any other type of worker.

No employee can agree to waive or give up their rights under the ESA. Any such agreement is null and void.

I’m an employer. I’m not sure if (or didn’t know) the person who works or provides services for me is an employee. Can I still be found in contravention of the prohibition against misclassifying employees?

Yes. An employer can be found in contravention of the prohibition against misclassifying an employee even if they were not sure or didn’t know that the person who works for them was actually an employee under the ESA. It does not matter whether the misclassification was intentional or not.

If you are not sure if someone who works for you is or is not an employee, it is recommended that you seek legal advice.

Who has to prove that a person is not an employee?

If an employer believes that a person is not an employee, it will be up to the employer to prove that the person is not an employee. In a claim investigation, an employment standards officer may ask an employer to provide evidence that the person in question is not an employee. Evidence may include: written agreements relating to method of payment, place of work, hours of work, job description or any other condition or term; work schedules and task lists; invoices; or pay stubs.

Previous | Next