What independent contractors need to know | Employment Law Show TV – S6 E16

Episode Summary

WHAT INDEPENDENT CONTRACTORS NEED TO KNOW, fired for cause, laid off after maternity leave, and more on Season 6 Episode 16 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

Drastic change in work schedule due to COVID-19

Due to the pandemic, my employer has decided to change their business model and as a result, my hours will change drastically from a day to night shift. Can my employer do this?

• Change in work schedule: Employers do not have the right to make significant changes to the terms of employment without an employee’s consent, regardless of the pandemic. A major change in an employee’s schedule can result in constructive dismissal. Employees do not have to accept the proposed change and can inform their employer that they have refused and then pursue their severance entitlements.
  • WATCH TO LEARN MORE
    Employment Law Show Season 5 – Constructive Dismissal during COVID-19

Asked to return in a contractor position

I worked at a casino for 17 years when I was laid off at the start of the pandemic. They recently asked me to return but in a contract position instead of full-time. Am I owed any severance?

• Contractor position employee rights: Many employees and specific businesses have been shut down as a result of public health restrictions due to COVID-19. Once restrictions were lifted, however, employees have a right to return to the position that they had before their business was shut down. Changing the terms of an employee’s position can result in constructive dismissal. Employees should speak to an employment lawyer to pursue their rights.

Fired for cause after an isolated incident

I was fired for cause after an incident occurred with another co-worker. This was the only time I’ve ever behaved this way at the office after 8 years of employment. Can they do this?

• Terminated for cause due to disagreement: Employers and employees should remember that it is very difficult to terminate an employee for cause. Terminations for cause can only occur when an employee has exhibited serious misconduct and cannot be penalized for a single error or incident. Employers have to be able to prove that there was no alternative other than termination and that disciplinary measures have been implemented. Employees who have been fired for cause have often been wrongfully dismissed and should speak to an employment lawyer.
  • LEARN MORE
    Fired for off-duty conduct?

What independent contractors need to know

• Many independent contractors may truly be employees: Ultimately it does not matter what an individual has signed and been given by their employer. Employment law determines whether or not an individual is an employee or an independent contractor. Misclassifications are very common particularly as gig-work becomes more popular.
• Ways to determine whether someone is a contractor or employee: Individuals should ask themselves whether or not they are in business for themselves or someone else. There is a lack of control over many aspects of the job that factor into whether or not an employee is a contractor or not.
• Employees incorrectly classified as contractors miss out on basic rights: Individuals who are incorrectly classified as contractors are not given overtime pay, vacation pay, minimum wage etc. It is also important to note that there could be consequences regarding incorrectly filed taxes for employees who are unaware of their classification.
• Independent contractors are often owed severance pay: Independent contractors are not owed severance upon termination however many are in fact, employees, and owed severance pay. Those unsure of their rights and classification upon termination should speak to an employment lawyer.
  • Learn More
    Maximum severance in Ontario
    Severance Pay Alberta
    Severance entitlements in BC
• Contractors should always talk to an employment lawyer: Employees have the right not to have fundamental terms of their position changed as well as severance pay if changes are forced upon them by their employer. Misclassified employees have the same rights and entitlements as regular employees.

Laid off when returning from maternity leave

My wife was working for a big construction company before she had to take maternity leave. Right before she was set to return, her employer informed her she was being laid off due to COVID-19.

• Rights during and after parental leave: Employees who work in construction are still owed severance pay and are owed the same amount of pay as employees in other sectors. It is important for employees to note that they cannot be penalized or let go for taking parental or maternity leave. Termination or penalizing employees due to pregnancy can be considered a human rights violation and employees would be owed additional damages.
  • Learn more about severance
    Severance pay for construction workers

Asked to sign a new contract that can eliminate severance pay

I’ve been in an executive position and employed at my company for 20 years. The company was bought and they’ve asked us to sign a new contract. The new contract eliminates some of my severance pay if I’m fired. What are my options?

• New employment contract: Before signing an employment agreement it is important for employees to speak to an employment lawyer and seek legal advice. Employment contracts that are offered after an employee has already begun employment typically include language that prohibits and restricts an employee’s entitlements. Termination clauses can be unenforceable however it is important for employees not to risk giving up their rights.

NEXT EPISODE: Employment Law Show S6 E17 – Guide on handling harassment at work

PREVIOUS EPISODE: Employment Law Show S6 E15 – Employment Law Red Flags #2