The Truth About Independent Contractors | Employment Law Show TV – S5 E29

Episode Summary

THE TRUTH ABOUT INDEPENDENT CONTRACTORS, forced relocation, employee vacation approval, and more on Season 5 Episode 29 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 to know about employment law in Ontario, British Columbia, and Alberta, on the only employment law show on both TV and radio in Canada.

Episode Notes

Accepting a temporary layoff

I’ve been on a temporary layoff since last year. My employer recently called me back to work. Do I give up the ability to pursue a constructive dismissal if I go along with the recall?

Employees do not have to accept a temporary layoff and can choose to treat the layoff as a termination of employment. However, if an employee simply returns back to work after a layoff, it is considered to be accepted. Employees who wish to return to work should request to be paid for the time they were laid off so that compensation is not lost.

LEARN MORE
Infectious Disease Emergency Leave Extended

Segment starts at 1:58

CALL: Employee rights after forced relocation

The corporation I work for has just sold the location I work at, and I’m being transferred to another office 50 km away. I’ve been working there as a supervisor for 14 years. What are my rights?

Employees who have been forced to relocate can be considered a reason for constructive dismissal as it can be a significant change. Relocation has to have a significant impact on the commute of an employee. Employees who have been constructively dismissed are within their rights to pursue their severance entitlements.

Segment starts at 6:20

Can my employer decide when I take my vacation?

My boss is rejecting all my vacation time requests, saying that he can’t accommodate them because of COVID-19. Isn’t it up to the employee to choose when they take time off?

Employers are within their rights to instruct employees to take their vacation within a certain time period and are also able to refuse a vacation request. While most employers try and take into consideration an employee’s requests, it is not an obligation. Employees do have to be able to take a vacation.

Segment starts at 10:22

The Truth about Independent Contractors

1️⃣ What are the differences between an employee and a contractor?

Employees are individuals who work for someone else and provide services to an employer. Independent contractors operate their own business and have clients they provide services to i.e. electricians, plumbers, etc. who do occasional jobs for individuals.

• LEARN MORE: Severance pay for electricians

Segment starts at 14:53

2️⃣ What are employers and workers still getting wrong about these roles?

Employees are often misclassified as independent contractors and are labelled as such by a third party. Individuals who are not operating their own business are not independent contractors. Employment law dictates what constitutes an employee, not an employer.

Segment starts at 16:36

3️⃣ Does it really matter if you are an independent contractor or an employee?

Employees who have been misclassified can have potential difficulties with the CRA; there could be penalties owed. Employees who have been misclassified are also exempt from vacation and sick pay, minimum wage, severance, etc.

Segment starts at 17:52

4️⃣ What happens if somebody signs a contract that says they’re a contractor? Does that change things?

Contracts given by employers can state an employee is a contractor, however, it is not binding. Employment law alone dictates who is considered an employee or a contractor. It is important to pay close attention to the type of relationship between an individual and the company they work for and how much control an individual has over their own schedule and compensation.

Segment starts at 19:35

5️⃣ What should somebody do if they are working as a contractor, but think they’re actually an employee?

Individuals who have been misclassified should seek advice regarding their taxes to minimize liability as well as decide whether or not they wish to enforce their rights. Employees who wish to pursue their rights should contact an employment lawyer as soon as possible.

Segment starts at 20:41

CALL: Firing an employee after disciplinary issues

Can my employer fire an employee who has been disciplined often over the last few years due to anger issues? He has been a problem for the company and his coworkers.

Employers are within their rights to terminate an employee for cause if they can prove that an employee has been disciplined and given the opportunity to improve. As terminations for cause are difficult to prove, an employer will also have to give evidence that there were no possible alternatives other than termination.

Segment starts at 22:01

CALL: Employee close to retirement offered severance package

A 62-year-old friend was let go due to the COVID-19 pandemic after 29 years at the company. He has been offered $15,000 in severance pay. What are his options? Is he owed more?

In order to determine an employee’s severance package, several factors are taken into consideration such as the age of an employee, the length of employment and the position.  Typically senior and long service employees are owed a larger severance package.

LEARN MORE
• Severance Pay in Ontario
• Severance Pay in BC
• Severance Pay Alberta

Segment starts at 24:54

My employer is threatening to terminate my employment due to medical leave

I have been ordered by my doctor to go on long-term disability because my mental and physical health has been severely affected by the COVID-19 pandemic. My boss said I’m overreacting about everything, and that he can guarantee that I will not have a job to come back to when I am able to return. Not sure what to do.

Employers cannot penalize or terminate employees who have their doctor’s approval regarding their medical condition and inability to work. Terminating an employee for taking medical leave or due to a mental health condition is considered a human rights violation.

Learn More
Invisible Illness and Long-term Disability Claims

Segment starts at 26:52

NEXT EPISODE: Employment Law Show S5 E30 – What your employer legally can’t do – Part 2

PREVIOUS EPISODE: Employment Law Show S5 E28 – 5 Common Questions about Returning to Work for Employees