Fast Facts about Independent Contractors | Employment Law Show TV – S8 E08

Episode Summary

FAST FACTS ABOUT INDEPENDENT CONTRACTORS, terminations for cause, necessary workplace accommodations, and more on Season 8 Episode 08 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

Demoted from senior position

My job is being changed significantly. After years in a senior position, I was demoted. I was told to be a “team player” by my employer. Do I have to accept this?

• Constructive dismissals: Employers are not able to make significant changes to the terms of an employee’s job, such as a demotion or pay reduction. Employees can refuse to accept the proposed change and pursue their severance entitlements.
  

Severance if a company is sold

I’ve worked as a hotel sales manager for over 15 years. We were recently informed that new owners are buying the hotel, and there could be layoffs. The new owners are rumoured to offer minimum severance packages. What would I be owed?

• Severance entitlements: Employers mistakenly believe that the closure of a business or the sale of a business ensures exemptions from severance packages. Employees are still owed adequate severance pay, not minimum entitlements if their company is sold or closes its doors. Severance is based on an employee’s position, age and years of service.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C

An employer trying to find a reason to terminate “for cause”

My employment agreement stipulated a minimum amount of severance pay upon termination. Now that I’ve been let go, it seems like they’re trying to come up with a reason to terminate me “for cause”. Can they do this?

• Terminated “for cause”: It is typically difficult for employers to prove a “termination for cause”. Most employees are terminated without cause and are owed severance pay upon termination. To prove a termination “for cause”, employers must prove serious misconduct of an employee, such as theft or fraud. Many terminations for cause are wrongful dismissals.

Company moving to a new location

I was informed that our plant would be shut down and we’d be moving to a unionized shop. My shift will also be changing with this move. I’ve been employed at this company for over 25 years. Would I be owed a severance package?

• Changes made to terms of employment: Transitioning from a non-union position to a unionized job is a significant change. Employees do not have to accept major changes made to the terms of their employment. A major change, like a position shift or relocation, can be treated as a constructive dismissal. Employees can pursue their severance entitlements despite the fact they have not been actively terminated.

Fast Facts about Independent Contractors

• Employment law determines if an individual is an employee or not: Employment law determines whether an individual is an employee or an independent contractor, not an employer. Employees are still owed employment rights despite a misclassification outlined in an employment contract.
  
• Working under the direction of a sole company: Misclassified employees typically work exclusively for a sole employer and do not have the flexibility to pick their jobs.
• Missing out on vital employment rights: Misclassified employees miss out on vital employment rights, such as overtime pay, sick leave, severance entitlements, etc. This is particularly significant in the event an individual loses employment and could be owed severance.
• Owed compensation upon termination: Independent contractors are not owed compensation upon termination. Many contractors however have been misclassified and upon loss of employment, would be owed severance pay.

Workplace accommodations ignored by employer

I was diagnosed with a severe case of vertigo and must use a walker. I’ve been working from home full-time for the past several years, but shortly after my diagnosis, my employer requested we return to the office. The HR department has reached out and suggested I’d be better on LTD. Can they force me to go on LTD?

• Duty to accommodate a medical condition: Employees must provide their employers with a doctor’s note detailing their limitations and necessary accommodations. Employers are obligated to accommodate an employee’s medical condition, and cannot force an employee to take medical leave or long-term disability. A failure to accommodate is considered a human rights violation.
  

Offered an employment contract after years of employment

I’ve worked at a dental office for over 15 years without an employment contract. Last week I was told there was new documentation I had to sign. I refused as I’d never needed a contract before. Can they let me go if I refuse to sign?

• Terms in an employment contract: Employees should be wary if they are asked to sign a new employment agreement, particularly after years of employment. Employment contracts protect the interests of an employer and can infringe upon the rights of employees. Employees can refuse to sign an employment contract but would be owed severance if terminated.

Rapid Fire Can employees…?

• Take on more responsibilities: Generally, employees can be asked to take on more tasks and responsibilities at work, unless this changes the nature of a job significantly.
• Let go “for cause” due to theft or fraud: Employees who have committed fraud or theft can be let go “for cause” by their employers. Termination for cause ensures no severance is paid after an employee has been let go.
• Report incidents of bullying and harassment: All employees must report incidents of bullying and harassment to the appropriate department in their workplace. Employees have the right to work in a safe environment, free from harassment.
• Forced to relocate to a distant branch or office: A major relocation can lead to constructive dismissal, and employees do not have to accept the move.
• Return to work from medical leave: Employees are within their rights to return to work from medical leave with the approval of their treating doctor. A return to work from medical leave can often include necessary accommodations.
• Placed on probation: Probation periods are not automatic and must be agreed upon in an employment contract at the start of a new job. Probation cannot be imposed upon an employee as a means of discipline.
• Severance pay after the deadline expires: Deadlines are often imposed by employers to pressure employees into accepting inadequate severance packages. Employees have up to two years after the initial termination to pursue their severance entitlements.

PREVIOUS EPISODE: Employment Law Show S8 E07 – Guide to Workplace Accommodations