Once bitten twice shy: Greater scrutiny ahead for employees misclassified as contractors

October 22, 2017 - by: Jackie VanDerMeulen 0 COMMENTS

by Jackie VanDerMeulen

Organizations’ use of independent contractors (often also referred to as consultants) as opposed to actual employees has grown significantly over the years. This trend comes as no surprise in a changing economy where particular skill sets are required at specific times and where flexibility is a key driver of success. In some cases, the characterization of a relationship as one of independent contractor is driven by requests from workers themselves, often to take advantage of certain tax benefits.

There are lots of great reasons to use independent contractors as part of a workforce. Increasingly however, adjudicators, plaintiff lawyers, and legislators are challenging employers who “misclassify” workers as independent contractors. A finding that a worker (or group of workers) has been misclassified can result in significant liability for an organization. Employers may therefore want to think twice before using independent contractors.

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More employee benefits on the horizon for Canadians

July 16, 2017 - by: Hannah Roskey 0 COMMENTS

The year 2017 may be remembered for its significant changes in matters of labor and employment across Canada. Several jurisdictions are amending their labor and employment regimes, including the federal government. With the introduction of Bill C-44, the federal government has adopted significant reforms to the Employment Insurance Act and the Canada Labour Code.

While federally regulated employers will want to pay close attention, it is worth noting that these reforms are already trickling down to the provincial level. Indeed, some provinces have proposed amendments to their provincial employment and labor legislation, all of which signal a trend toward more employer scrutiny in the labor and employment spheres, as well as a shift toward more employee-friendly rules. Employers should be cognizant of these changes as they are implemented at both the federal and provincial levels.

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Ontario labor and employment laws to undergo significant amendments

by Sophie Arseneault and Christian Paquette

In Canada’s most populous province, labor and employment matters are governed by two fundamental statutes: the Employment Standards Act (ESA) and the Ontario Labour Relations Act (LRA). The ESA sets out minimum rights and obligations of employers and employees in the province. The LRA governs a host of matters regarding labor relations from certification and collective bargaining to unfair labor practices and decertification.

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Clean slate: Purchaser not bound by poor WCB record of company it acquired

June 04, 2017 - by: Hannah Roskey 0 COMMENTS

by Hannah Roskey

When contemplating acquiring the assets of a company in Canada, the purchaser will engage in extensive due diligence to ensure it is making a sound investment. These searches almost always include inquiries with the Workers’ Compensation Board (WCB) in the relevant province.

A poor result, with outstanding claims and high premiums, might send the transaction sideways. However, a recent decision of the Appeals Commission for Alberta Workers’ Compensation suggests that a purchaser may avoid the consequences of a mediocre WCB record altogether and wipe the slate clean.

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Court refuses to put the brakes on random drug and alcohol testing – for now

May 14, 2017 - by: Rachel Younan 0 COMMENTS

by Rachel Younan

The Ontario Superior Court of Justice has declined to grant an injunction that would have suspended the Toronto Transit Commission’s (TTC) ability to implement its random drug and alcohol testing policy. In Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078, the court concluded that there was a serious issue to be tried in the arbitration of the TTC policy, namely whether the threshold requirement of a demonstrated workplace problem with alcohol and drugs had been met.

Background

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Surprising pro-employer decisions on post-employment restrictive covenants

by Kyla Stott-Jess and Stefan Mirkovic

Employers often place great faith in restrictive covenants to protect their assets when hiring key employees. In Canada however, noncompetition clauses have generally been very difficult to enforce outside of the context of a sale of business. Nonsolicitation clauses have also been carefully scrutinized by judges even though they are more readily enforced.

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Freedom of expression during collective bargaining: What are the limits?

by Stéphane Fillion and Laïla Tremblay

In Canada, many cases have considered and limited an employer’s freedom of expression during collective bargaining. But what about the freedom of expression of the employees during that period? Is it similarly limited?

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Seasonal employee not bound by noncompetition clause

March 26, 2017 - by: Matthew Larsen 0 COMMENTS

by Matthew Larsen

A British Columbia court recently explored a novel issue – whether a noncompetition clause is enforceable against a seasonal employee.

Facts

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‘I quit … oh wait, I didn’t mean it!’

March 19, 2017 - by: Stefan Kimpton 0 COMMENTS

by Stefan Kimpton

Employers don’t often enough think about the consequences of a heat-of-the-moment resignation. It is generally assumed that when an employee says “I quit” or storms out of the workplace, the employment relationship has come to an end and the employer owes no further obligations to the employee.

Think again. As a recent decision of the Ontario Superior Court of Justice – Johal v Simmons da Silva LLP, 2016 ONSC 7835 – reminds us, employers ought to exercise caution before accepting a resignation from an employee who quits suddenly following an emotional outburst at work. For the resignation to be valid, it must be clear and unequivocal. Most importantly, it must reflect the employee’s intention to resign.

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Safety incidents: the right to remain silent versus the obligation to speak

January 29, 2017 - by: Deanah Shelly 0 COMMENTS

by Deanah Shelly

What if this happens at your Canadian facility: One of your employees witnesses a workplace incident. Soon, enforcement officers are on-site investigating the incident. They may be police officers, health and safety inspectors, or environmental officers. One of the investigating officers asks the employee to assist and provide a witness statement. What should the employee do? What are the employee’s rights?

This split-second decision can have long-term and far-reaching legal implications for that employee, the employee’s coworkers, and your organization. Employees in such a situation might risk being charged with obstructing justice or inadvertently providing evidence to implicate themselves or others.

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