Employers beware of ‘Dependent’ Contractors

| October 16th, 2014 | No Comments »

When an employer decides to hire for their business, they can recruit employees, independent contractors or dependent contractors.  Distinguishing the difference can be difficult, and noting the significant advantages and disadvantages can be tricky.  With the right guidance, an employer can avoid many unpleasant surprises, like that in Khan v. All-Can Express Ltd.  Particularly, when paying close attention to drafting an employment contract that relates to the specific relationship between employer and employee, independent contractor or dependent contractor.

Employers must know that the law examines the reality of the relationship, not the words used to describe it.  Employee’s and dependent contractors have some very similar qualities.  The element that stands out most is they are both entitled to reasonable notice of termination.  Unlike independent contractors who can be terminated without, or very little, notice. Employers must ensure that they protect themselves against future dilemmas when recruiting an independent contractor.  They can certainly appreciate the benefits of independent contractors by learning more on the law that surrounds it.

The following are factors to help you beware of misclassification between employees, independent contractors and dependent contractors:

  • The reality of the relationship is key- simply calling someone an independent contractor does not make it true.
  • Employees and dependent contractors are normally entitled to reasonable notice of termination.
  •  A proper contract can eliminate the risk of a large award of pay in lieu of notice of termination for an independent contractor.

 

Employment terminations

| October 10th, 2014 | No Comments »

Employment terminations can be cruel, and finding a lawyer that suits your wallet, is intimidating.  All termination scenarios vary from employee to employee, and finding a lawyer to counsel you every step of the way is the best advice.  In the Globe and Mail’s Report on Business, Toronto employment lawyer, Daniel Lublin says dismissed employees should never sign termination documents, such as a release, without at least having them first reviewed by a lawyer.

Daniel Lublin explains this further and answers some questions from readers regarding constructive dismissals.  In particular, where an employer assigns a vastly different role in a different location, what are your legal rights? Daniel Lublin explains that an employer cannot force you to take on a vastly different role in a different location. You do not have to accept the change rather; you can protest this in writing. If your employer refuses, you may have the option to sue in court for constructive dismissal.

Read Daniel Lublin’s Globe and Mail column and full article Can my company force me to take a wildly different job?

U.S. employer refuses to pay Canadian employee’s wage

| September 29th, 2014 | No Comments »

When a U.S. employer refuses to pay a Canadian employee’s wage and claims they are not within the jurisdiction to file a claim, the employee has options.  The foundation of an employer/employee relationship is that in exchange for an employee’s hard work, the employer pays a salary.  Simply because the employee works from home in Ontario for an employer in the U.S., does not mean that the employer/employee relationship functions any differently.

Daniel Lublin, Toronto employment lawyer provides reader’s with his response to the question, can a Canadian employee file a claim against a U.S. employer for wages owed?  His answer is yes.  You can commence proceedings against the employer in either Ontario or the U.S. state where the business is located. Although choosing where to pursue the claim is a matter of strategy.

Initiating the claim in Canada can be more costly for a number of reasons. Mr. Lublin explains that the best option is to hire a lawyer in the U.S. state where the business operates and explains in more detail the reasoning for this.

Read more about this topic in Daniel Lublin’s Globe and Mail column and full article My U.S. employer owes me $36,000 and refuses to pay

Your work is eliminated and you have a new role offer

| September 25th, 2014 | No Comments »

A situation can arise where your job is eliminated and the employee is offered a different role with the same wage. The problem is that this new position has the potential to cause health complications. Other factors such as age and the environment of work are not suitable for you to accept this offer. What are your legal rights in this regard?

Employment lawyer, Daniel Lublin explains that an employer has a legal duty to accommodate an employee by finding a suitable alternative or modifying the work conditions in a reasonable way.  Without the employee’s agreement, the employer cannot change the work in a negative way. When changes are made in a negative way and without your consent, it can lead to what is known as a constructive dismissal.

To read more on this principle, it can be explained further by reading Daniel Lublin’s full article Can my employer cut off my disability payments? and column in the Globe and Mail.

An employee’s legal rights to disability payments

| September 25th, 2014 | No Comments »

An injury or health complication can cause an employee to seek disability payments and/or modified work. Where disability plays a role, the insurance company is responsible to make payments to the employee.  Suddenly payments stop and the insurance company declares that you are capable of working in a different work environment. Can the insurance company do this?

In his most recent Globe and Mail article, Daniel Lublin, Toronto Employment lawyer discusses the term “disability” and how the definition evolves, usually after two years.  It is at this point that the disability insurance policy clause comes to have a different meaning which changes your legal rights to disability payments. In order to continue to receive benefits, an employee has to show that they are unable to perform any job, not just your own. Just as the employee has an obligation to prove that they are unable to work, an insurance company bears the same responsibility to prove the contrary.

Read Daniel Lublin’s Globe and Mail column and full article Can my employer cut off my disability payments?

Employment and accomodation for your injury

| September 23rd, 2014 | No Comments »

work injuryNo one can decide the best timing for an injury.  When your employment and employment duties become affected by your injury, what legal recourse do you have?

Toronto Employment lawyer, Daniel Lublin states in his Globe and Mail article that employers have a legal obligation to accommodate an illness, injury or disability up until the point of undue hardship. It is wise to consult with an employment lawyer where there is a dispute as to how your injury is affecting your duties and responsibilities. If you believe you are being discriminated against at work as a result of your injury or illness, seeking legal advice is your best course of action.

Daniel Lublin’s full article My company fired me and won’t give me my pictures can be read in his Globe and Mail column.

The workplace computer and your legal rights

| September 23rd, 2014 | No Comments »

workplace computerA termination of employment can give rise to a number of factors that can cause frustration. Whether you are a long term or short term employee, you may or may not decide to save your personal files on your workplace computer.  If you save them on your workplace computer, what are your legal rights to them upon termination?

Daniel Lublin, Toronto Employment lawyer gives his response in his most recent Globe and Mail article where he says that the distinction between a picture hanging on your workplace wall and a picture stored on your workplace computer is very little. The factors used to establish if the contents in a workplace computer belong to the employer are: whether or not an employer authorizes the use of a workplace computer for personal use and/or a contract that states the photographs or documents belong to the employer.

To find out more, read Daniel Lublin’s Globe and Mail column and full article, My company fired me and won’t give me my pictures.

Enforcing Written Employment Contracts

| September 18th, 2014 | No Comments »

The manner in which an employment contract is written and the language employer’s use to deal with employee terminations can help ease the uncertainty with respect to how much it will cost to terminate an employee. The Courts maintain a very strict standard when it comes to enforcing these clauses and when poorly drafted, the Courts will not hesitate to disregard it.  Primarily, an employment contract should reflect current legislation and the minimum statutory entitlements.

Most employment contracts fail at the onset when the minimum statutory entitlements are not respected. In addition, the termination language needs to be such that it provides the employee with the minimum entitlement according to provincial or federal legislation. When this is not met, the Court will strike it down. To ensure that the termination language in an employment contract is written and enforceable follow these steps:

  • Keep it simple: Set out the specific amount of notice and/or pay. A complex clause can run the risk of being invalid if there is more than one interpretation.
  • Know your jurisdiction: Know the statute that applies. Some employers are provincially regulated, and some are federally regulated.
  • Know the applicable minimum standards and how they apply: familiarity with this will help ensure that the clause is compliant at all times.
  • Close the door on more damages: write the clause so that it does not permit an interpretation for additional payments.
  • Recommend independent legal advice: include this in the contract, it will help defuse the argument that the person was forced to sign or that they didn’t understand what they were signing.

 

 

Your employment rights regarding mental illness therapy

| September 3rd, 2014 | No Comments »

An employer-employee relationship can be impacted as a result of mental illnesses.  Depending on the diagnosis, these illnesses sometimes require medical treatment or counseling that may or may not be of interest to the employee.  While the employee has legal rights, so does the employer.  Readers want to know, when an employee refuses to accept treatment or counseling, are these grounds for termination and is counseling mandatory?

Employment LawyerDaniel Lublin gives his opinion and explains to readers that an employer’s request for mandatory therapy is illegal and discriminatory in nature.  Similarly, terminating an employee for refusing to participate in treatment is also discriminatory.  There is of course an exception to the rule which he explains is difficult to show.  Managing mental illness includes various types of therapy, which make matters for an employer that much more complicated. Misunderstanding these rules and terminating an employee for failing to attend mandatory counseling can lead to a human rights complaint.

It is always best to consult with an employment lawyer who can give you expert advice.  Daniel Lublin’s full article Can someone be fired for refusing therapy? can be read in his Globe and Mail column.

Everything you need to know when it comes to termination

| September 2nd, 2014 | No Comments »

An employee’s right to protect themselves from termination of employment is reasonable. Daniel Lublin, Toronto Employment Lawyer offers some insight on this topic in his most recent Globe and Mail column.

There are unfortunate incidents when an employee finds that it is necessary to file a complaint against a co-worker.  What happens when the employer does not address the situation properly or at all?  Mr. Lublin explains that formal or informal complaints need to be addressed.  An employer has a legal duty to investigate the complaint and take the necessary measures to prevent the issue at hand from occurring in the workplace. If your employer does not take proper action, an employee has alternatives.  He offers this piece of advice, it is a good idea to document in writing that you are making a complaint, although oral complaints still require the employer to act. If the complaint is based on bullying or harassment, there are other factors that can come into play.

In the event that an employee gives an employer notice of resignation in the long unforeseen future and the employer deems this an immediate resignation, what should an employee do?  Daniel Lublin states that you need to write to the employer immediately and repeat that you are not resigning and that you intend to keep working.  Since this was not a resignation of immediate effect, you can be entitled to more.

To find out more about these issues read Daniel Lublin’s Globe and Mail column and full article, How can I ensure I won’t be fired at a new job?