business_law_final_20240407170712 Flashcards
What is an employee?
Contract by which a person (employee) does work under the direction/control of another person for a limited time and for pay (CCQ)
- Each party has an obligation (bilateral contract)
- Employee must personally carry out the work
- Subordinated and receives $$
What is an independent contractor?
contractor undertakes a physical, intellectual work or supply a service for a price and for a client
Contractor is free to choose the means of performing the contract and no relationship of subordination exists (CCQ)
How do you distinguish between an employee or independent contractor?
The key is looking at the element of subordination or control (CCQ).
However, jurisprudence has implemented tests (SAGAZ)
1. Key factor = subordination and control
Employee → subordinate to the employer
Contractor → not subordinate
Other factors
2. Intuitu personae
Employee → must perform work herself/himself
Contractor → not obligatory, can hire others
(Affects the level of risk taken on by the contractor)
- Tools & equipment
Employer → provides to employee
Contractor → provided by contract
Why is the distinction between contractor and employee important?
- Responsibilities for the employer change depending on whether they are an employee or contractor
- Taxes, certain deductions for independent contractor
What laws govern employment contracts?
- CCQ
- Act respecting labour standards
- Act of legal rights and freedoms
What are the requirements for forming an employment contract?
- Legal capacity (14+ or approval from guardian)
- Must be a valid offer and acceptance (voluntary consent)
- Oral or written (written is preferable to have a record)
What is the term for an employment contract?
Fixed: specified date
Indeterminate: no set end date
How does termination of employment contract?
CCQ
- Tacit Renewal: If employee continutes to carry on their work five days after the expiry date, without objection from employer
- By notice: Need to give notice for indeterminate term, with reasonable time. Must think of circumstances and duration of the period of work and nature of work
- Death: Might terminate in death of employer (e.g. sole prop)
- By superior force: Can terminate if supeior force. e.g. factory you work in burns down, Covid used to be a reason but it is no longer valid.
- Good or sufficient cause: Serious reason to terminate (e.g. steal 50k from company, they can fire you without notice)
What are the employer obligations in employment contract?
- Provide work (the same as what was agreed upon)
- Remunerate
- Provide healthy/safe conditions (Charter of human rights and freedoms)
- Maintain dignity of employees (Charter)
- Provide tools and materials necessary to perform the work
- Provide work place and make it accessible
What are the duties of employment from the employee?
- Work (with prudence and diligence to the best of abilities)
- Duty of loyalty during employment: do nothing to harm employer, Protect confidential info, avoid conflicts of interest, cannot use employer’s information
What is duty of loyalty for employee?How does it change after employment?
Obligation to maintain private information continues, must be a reasonable time (determined by job responsibilities and balanced with need to make a living. Post-employment duty is less than when you are working there.
Permanent: reputation and private information
What are the characteristics of non-competition clauses?
- Must be in writing
- burden of proof on employer (standard is balance of probabilities)
- Reasonable restrictions on: Work limitations, territory restrictions, time restrictions - Courts dont like enforcing these
- does allow employee to contribute to society
- limits individual
- if any part is unreasonable, they dont rewrite, they strike the whole thing
What is the act respecting labour standards?
- product of national assembly (quebec)
- amended many times
- sets minimum employment conditions
Why are employment standards important?
- Correct for power imbalances between employers and employees
- Feared that without legislation, employees would face bad working conditions (long hrs, bad pay, unsafe)
Why is the Act respecting labour standards in place (why cant they just figure it out themselves?)
- Abuse of power (some employees dont know what they should be asking for
- Presumption that prospective employees arent as sophisticated as their employers. therefore need to protect employees
Who does the Act respecting labour standards apply to?
Any employee regardless of where they work for any employer that operates in quebec. Independent contractors are completely excluded (federally regulated) and partial exclusion for some people such as senior managers who only benefit from retirement, psychological and sexual harassment and family leave.
What is the hierarchical levelof managers in the organizatonal structure?
Senior manager must be part of senior management. Must report to: owner, president, BoD, GM. (Consider size of the business, smaller might only have 1, larger might have a lot).
Level of decisions, level of autonomy, manages managers, condition of employment.
What is the required level of decisions for senior managers?
Participates in major decision making in the business (profit, growth, etc)
What is level of autonomy for a senior manager?
Great autonomy and decision making power
What are the conditions of employment for a senior manager?
Among best paid employees
What are the laws regarding minimum wage?
- Wages must be equal or above minimum set by law;
- Benefits are not part of minimum wage;
- applies to part-time;
- tips not included
What are the requirements regarding pay?
Must be paid in cash (sealed envelope), check or bank transfer.
Must be max 16-day interval (1 month for first pay or for managers).
Must be paid at his place of empoyment on a working day or can be given to a third party upon WRITTEN request
What are the requirements regarding deductions?
No deductions unless law authorizes or employee consents.
Levine: Worked as teacher and stated that a union he was not part of was taking money and donating it, court said there was an infringement on charter but Unions are important.
What are the laws regarding duration of work?
- Work week is 40hrs;
- Overtime pay is 150% or paid leave;
- Work periods are deemed by making yoursel favailable and 3-hour minimum call in pay (doesn’t apply to work in which the nature requires them to be present several times a day. E.g. cross guard)
Work breaks
30 minutes unpaid for meals for every 5 hours of work (must be paid if they cant leave work station
Weekly rest
Employee must have 32 consecutive hours of rest per week
What are the rules regarding work by children?
Must be over 14 ad cannot conflict with their education. (review all the requirements)
Annual leave based on service
Less than one year = 1 day per month.
year of service = 2 weeks and 1 week upon request.
3 years of service = 3 weeks
Sick leave
Can miss 26 weeks in 12 months, must be re-integrated into a post or a comparable post so the employee isn’t penalized for being sick. Constructive dismissal
What is a contructive dismissal
When an employee is deemed to have been fired without notice because employers made major changes to working conditions.
review personal leave
ok
What is a notice of termination?
Notification of one party to another of their intention to end the employenet and it is acceptable for one party to provide financial compensation to replace notice
What are the requirements of time for a notice of termination?
Less than one year (but more than 3 months) = 1 week;
1 to 5 years = 2 weeks;
5 to 10 years = 4 weeks;
10 years or more = 8 weeks. Doesn’t apply if: less than 3 months, contract for fixed term or undertaking, commited serious fault, superior force
Resources against dismissal
WHAT DOES THIS MEAN
What are the exclusions to immigration law?
Governor in council (cabinet) given the power to exclude ppl from canada based on race (Remained availabile until immigration act in 1978)
What are the issues with immigration law?
1) Unequal distribution of canadian immigration offices abroad (bias against south).
2) Unequal VISA application requirements
3) Taxing immigrants –> processing fee, right of permanent residence fee (500$) this impacts people from the global south and is often a limiting factor
Who is legally permitted to work in canada?
- Canadian citizens and permanent residents (can be revoked if they lose their qualification) ;
- Foreign national (only if authorized to do so under refugee protection act)
When is work without a permit allowed?
If they maintain a valid temporary resident status (Immigration and refugee protection regulations). Or if they have a study permit (limit of 20 hrs during academic year) or visitors (unclear)
What is work?
An activity for which wages are paid or commission is earned or that is in direct competition with the activities of canadian citizens or permanent residents. IIRC guidance helps define these terms.
What are the two types of work permits?
Open work permit and employer-specific (closed) work permit
Open work permit
- Allows the holder to work for any employers in canda including oneself (some exceptions)
For: International student who graduated from designated learning institution and spouse or common-law partner of a skilled worker/international student
Restrictions: can’t work for employers who: offers striptease, erotic dance, escort, erotic massages, listed ineligible on list of employers who have been found non-compliant. To prevent sex trafficking as these ppl can be vulnerable
employer-specific work permit (closed work permit)_
- Holder can work according to conditions stated in the permit (no sex work or non-compliant employers)
- Any change requires new work permit (pay increase >20%, promotion leading to job title change, etc)