The risks of misclassifying employees as contractors | Employment Law Show TV – S9 E11

Episode Summary

THE RISKS OF MISCLASSIFYING EMPLOYEES AS CONTRACTORS, a forced layoff, accommodations refused and more on Season 9 Episode 11 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 Canada’s only employment law show on TV and radio.

Episode Notes

Employer places the employee on an improvement plan

I was put on a performance improvement plan and told I had a few months to improve or else. This was out of the blue and I thought I was doing well. I’m worried I could lose my job.

• Performance management: Employees who believe criticism is unfair should voice their disapproval in writing to the appropriate parties. Employees who do not voice dissent appear to accept performance critique, even if it is unfair.

Employer forces a temporary layoff

My employer first asked me to agree to reduced hours, and then I was placed on a temporary layoff. I work in office administration.

• Placed on a temporary layoff: Employers do not have the right to reduce employees’ hours or pay significantly; this can be treated as a termination of employment. Similarly, a temporary layoff does not have to be accepted by employees. Employees who agree to be placed on a temporary layoff have given their employer permission to do so again at a later date.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C

Working for a new owner after the company is sold

I’ve worked for a company for 20 years and it’s now being sold. Can my previous employer offer me a severance package before the new owner takes over? I would still be working in the same position under the new owner.

• Employee rights when business is sold: Employees offered employment after their business’s sale are not considered terminated. Employees not offered employment by the new owner of their company can seek severance pay from their former employer. The company that buys another earns the staff’s previous years of employment. If the new owners eventually decide to terminate employment, severance pay would have to account for the previous years of service.

Doctor’s note not accepted by employer

My daughter has a doctor’s note requesting accommodation from her employer. She was initially told to submit the necessary specifications but then was denied her request and told to look for employment elsewhere.

• Accommodations at work: Employees must provide their employer with a doctor’s note regarding accommodations. Employers have a legal obligation to accommodate employees up until the point of undue hardship. A refusal to do so could be considered a human rights violation. It is illegal for employers to ask for a second opinion or refuse to comply with an employee’s medical recommendations.

The risks of misclassifying employees as contractors

• Definition of an independent contract: Independent contractors are workers who are in business for themselves. They typically provide services to their customers and clients. An independent contractor does not work for a sole client.
  
• Reason for misclassification: Employers misclassify employees as contractors as it is cheaper. Companies don’t have to withhold anything from independent contractors or offer vacation pay, severance, etc.
• Employment contracts: Despite signing an employment contract stating the classification, only employment laws can determine who is a contractor or an employee.
• Misclassified employee loses their job: Misclassified employees believe they are not owed severance pay upon termination. Individuals who are unsure of their classification as an employee should speak to an employment lawyer.

No job upon returning from maternity leave

My girlfriend is returning from maternity leave, and after two weeks of planning her return, her company told her they no longer have a role for her. Should we speak to a lawyer? We thought her job was protected. She was a data analyst earning $70K a year and had been with the company for almost four years.

• Parental leave rights: Employees must be able to return to the position they had before taking maternity or parental leave. If a job legitimately no longer exists, employers can terminate employees without cause and offer full severance entitlements. Employees penalized or terminated for taking protected leave could be owed additional compensation as it is a human rights violation.

Fired for complaining about pay cut

I was moved to another department against my will, which cut my commissions by more than 20%. I complained, and a week later, I was fired. Is this a reprisal?

• Changes imposed by your employer: Employers are not permitted to implement major changes to the terms of employment. A drastic pay cut can result in constructive dismissal. Penalizing an employee for voicing justifiable concerns would be considered a reprisal.
  

Can an employee…?

• Forced to accept demotion: Employees cannot be forced to accept a demotion as it is a major change imposed on their job. A demotion can result in constructive dismissal.
• Resignations and severance: Severance pay could still be owed to employees who have resigned if their employer has breached their employment contract.
• Denied vacation pay: Employees can lose vacation time but cannot lose entitlements to vacation pay.
• Refusing overtime: Employees can typically refuse to work overtime and cannot be disciplined unless they sign an employment contract in which they consent to do so.
• Request to work remotely: Employees can insist on working remotely permanently if they have a doctor’s note requesting the accommodation.

PREVIOUS EPISODE: Employment Law Show S9 E10 – Discipline at Work: 5 Key facts everyone should know