Independent Contractor or Employee: What Are You?
Are you an independent contractor or an employee? This question is one of the most common and important issues affecting employment law today in Ontario.
Employees are often misclassified as independent contractors. Misclassification can sometimes be an innocent mistake by all parties involved, or a conscious decision made by an employer to avoid certain costs and responsibilities as legislated by the Employment Standards Act. In either case, the penalty for making the wrong distinction can lead to big problems for both employer and employee.
Pursuant to the Employment Standards Act, and employee has the right to:
- Vacation pay
- Statutory holidays
- Overtime pay
- Notice, or severance pay in lieu of notice, upon termination
- The right to collect employment insurance benefits.
An independent contractor, on the other hand, does not have these rights unless it has been negotiated within the severance agreement.
Note that an employer cannot avoid the issue by having you sign an employment contract which states that you are an ‘independent contractor’ rather than an employee. The courts, administrative tribunals andCanada Revenue Agencywill examine the relationship to truly determine its true character.
Severance Pay for Independent Contractors
If you were fired, laid off or terminated by your employer, and were considered to be an independent contractor, contact us today. There is a significant chance that you are were, in fact, an employee, and are owed severance pay under common law. The experienced team at Samfiru Tumarkin LLP can tell you the true nature of your employment relationship, and work swiftly to obtain the termination pay that you are entitled to under common law.
How To Determine If You Are An Employee
Level of Control. If your employer sets the hours of work, determines the work that is to be performed, and supervises you, there is a good chance that you are an employee.
Ownership of Tools. If your employer owns the tools and equipment you require to complete your tasks, you may be considered an employee.
Opportunity for Profit and Risk of Loss. If you are paid a set fee, and do not incur any expenses directly related to the work that you are performing, you are likely to be considered an employee by the courts.
Contact Samfiru Tumarkin LLP today, and find out today if you are TRULY an independent contractor.
You should also use PocketEmploymentLawyer.ca to find out if you are actually an employee instead of a contractor.