Employment Law Flashcards
What is a contractor in comparison to an employee?
A contractor does a specified task within a specific time and are free from the supervision and control of the person who hired them whereas employees are not.
Contractors are able to work for several employers at once
Contractors are responsible for liabilities incurred by them in carrying out the task whereas employees are protected by employer vicarious liability
Dependent contractors are given the right to reasonable notice before termination afforded to employees
What is vicarious liability?
Employers are liable for damages arising from any tort committed by an employee in the course of employment. Connection to business operation is assessed using opportunity, employer’s goals, friction in the employer’s business, power of the employee, and vulnerability of the victim
What is wrongful referral?
Negligently referring someone to a professional who is not qualified
What is an employer’s obligation in terms of contracts?
The employer acts as the promisor so they are liable for satisfactory performance
How can an employer legally terminate an employee?
By giving notice, by giving pay in lieu of notice, or for cause
How is reasonable notice determined?
Depends on the circumstances, length and character of employment, age of the employee, and availability of similar employment. Employees must give the same notice when quitting as employers when dismissing
When can employee leave without giving reasonable notice?
If they can show they were forced to quit such as being asked to perform an illegal act or anything that would otherwise break the employment contract such as a demotion or geographic transfer
When can you dismiss an employee for cause?
The employee’s conduct must amount to a major breach of the contract terms. Less serious breaches require progressive discipline before dismissal.
What are some different ways to get dismissed for cause?
Misconduct such as embezzlement or conduct, evidence of a lack of integrity required, violating the company’s personal code of conduct, if the employee willfully disobeys a reasonable and lawful order from the employer, if the employee accepts a position understanding they are capable of doing the work and are found later to be incompetent.
How can an employee be dismissed for cause?
The employer bears the burden of proof for showing cause. They have to establish that the employee was previously warned about the conduct, the conduct must not have been previously ignored or condoned, progressive discipline must have been attempted, and a fair hearing must be given to the employee where they are confronted with an allegation and able to defend themselves
What is wrongful dismissal?
If an employer does not follow the rules for cause or reasonable notice which amounts to a breach of contract
What is constructive dismissal?
When the employer has created a hostile work environment such that an employee resigns because of it. Amounts to a termination as resignation isn’t truly voluntary
What is an employee expected to do when wrongfully dismissed?
An employee is expected to act reasonably to mitigate their losses by finding another job. The employee does not have to take a job substantially below their experience and qualifications nor do they have to relocate.
When are punitive damages for wrongful dismissal assessed?
When employers act in bad faith, use hardball tactics, or humiliate an employee they may be required to pay mroe for mental anguish
