Employee Misclassification: What is it? | Employment Law Show TV – S9 E05

Episode Summary

EMPLOYEE MISCLASSIFICATION, resigning from a toxic workplace, terminated “for cause” due to performance and more on Season 9 Episode 05 of the Employment Law Show with employment lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP.

Watch above to discover your workplace rights and learn everything you need about employment law in Alberta, Ontario and British Columbia, on the only employment law show on both TV and radio in Canada.

Episode Notes

Reported safety issue leads to cancelling of shifts

I worked for my employer for about 10 years. I recently noticed there was a safety issue and informed my boss. I was taken off shifts as a result. What can I do here?

• Safety in the workplace: Employees have the right to refuse unsafe work and cannot be penalized by their employer for refusing to do so. Employers must resolve complaints and punishing an employee can lead to legal consequences.
  

Severance for a specialized position

I was just let go from my job after a year and a half. It was an engineering job, and I was making $120K a year.

• Factors that influence severance: Employers often offer inadequate severance packages. Severance must take into account an employee’s age, position and years of service. A short-service employee can be owed significant severance pay, and in many cases, comparatively more than a long-service employee.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C

Part-time employee hours drastically cut

I’ve worked part-time for a company for 3 years now. I’ve always worked upwards of 45 hours a week. Suddenly my hours have been reduced to almost 12 hours a week. This is going to be a significant reduction in pay.

• Constructive dismissals: Employees do not have to accept an imposed change to their position. A major change can lead to a constructive dismissal, in which an employee can consider their employment terminated and pursue severance. Employees who accept a proposed change permit their employers to enact future changes.

Resigning from a toxic workplace

My daughter has worked for a little over a year in a sales role. She’s in her early 20s and this is her first real job. The workplace has become really toxic and she’s considering resigning. Is it better for her to stick it out?

• Workplace harassment and employee rights: Employees should speak to an appropriate internal department regarding workplace harassment. All employees are entitled to work in a safe, harassment-free environment. Employers must investigate workplace harassment complaints. A failure to resolve the issue could lead to constructive dismissal.

Employee Misclassification: What is it

• Defining a “misclassified” employee: Employed individuals can be considered employees or contractors. A company or employer cannot determine whether or not someone is an employee or contractor. Employment law dictates the classification of “employee”.
  
• Misclassified as a “contractor: A contractor is in business for themselves; they typically have their clients. An employee, however, works solely for one company and cannot control their schedule or jobs.
• Reason for misclassification: It is cheaper to hire contractors than employees. Employers do not have to comply with overtime pay, severance, etc. if they have only hired contractors rather than employees.
• Severance if let go: Misclassified employees are not offered adequate severance, if any, once terminated. Severance for misclassified employees would be based on the same factors as a regular employee.
• Options for employees: Many misclassified employees are unaware of their rights and entitlements. It is vital for individuals unsure of their classification to seek out legal advice from an employment lawyer.

Reason for terminating employees

I was just let go from my job “without cause” after 12 years in a supervisor position. The employer is offering 2 months’ termination pay and insists that this is due to business slowing down. Can they be forced into providing me with a valid reason for this dismissal? Can I pursue a wrongful dismissal?

• Wrongful dismissals: The financial circumstances of an employer or company do not factor into a severance package. Many employees mistakenly believe a wrongful dismissal occurs if there is no legitimate reason for termination. Employers are not legally bound to provide employees with a reason for termination. A wrongful dismissal occurs if after an employee is let go without cause, they are not provided adequate severance.

Let go for performance reasons

My manager claimed my performance was in question and said I’d received a verbal warning, but that never happened. I was placed on an improvement plan extended twice, with disciplinary hearings in between. Ultimately, I was dismissed “for cause”. Did I forfeit my rights by going along with everything?

• Performance management: It is difficult to terminate an employee “for cause”. Employers must be able to prove an employee has committed a serious offence, such as theft or fraud. Employees who do not believe a criticism or performance improvement plan is accurate should voice their disapproval in writing. Many employees are mistakenly terminated for cause and still owed severance.
  

Employment Rights

• Probation period be extended past 3 months: Employers can extend a probation period past 3 months, however, it is considered meaningless. Employees who are let go past the initial 3 months of probation would still be owed severance pay.
• An unpaid suspension: Employers cannot place employees on an unpaid suspension in a non-union environment. A paid suspension in some circumstances is permissible.
  
• Bonus be factored into a severance package: A severance package must include all elements of an employee’s compensation, including an annual bonus, commissions, etc.
  
• Reduced salary as a disciplinary measure: Employers cannot reduce an employee’s salary as a means of discipline. A major reduction in pay can lead to constructive dismissal.
  
• Resigning over unpaid wages: An employee can and should file a complaint with the Ministry of Labour regarding unpaid wages. Before resigning, an employee should seek legal advice.
• Placed on “working notice”: Employers can legally place employees on working notice. It is common for additional severance to be owed at the end of a notice period.
  

PREVIOUS EPISODE: Employment Law Show S9 E04 – Primer for taking Maternity or Parental leave