Employment Law

Question 1

What is employment?

Answer 1

A relationship where the rights and obligations of the employer and employee are established by a contract.

Question 2

What are two options if the contractual relationship between employer/employee is breached?

Answer 2

1. Either can sue for damages

2. Either may claim the contract was terminated by the breach

Question 3

What are the two types of employment relationships?

Answer 3

1. Employee: master-servant relationship

2. Independent contractor: works for him/herself

Question 4

What is the control test?

Answer 4

A traditional method for determining whether an employment relationship exists.

Question 5

How does the control test work?

Answer 5

Assesses the degree of control exercised by the person paying for the service, potential employer.

Question 6

What do today’s courts consider along with the control test?

Answer 6

1. Who owns the tools
2. Who stands to profit
3. If worker is paid wage/salary
4. If worker is paid by the job

Question 7

What is the organization test?

Answer 7

An assessment of whether the worker is an “integral part” of the organization of the employer, or if worker is free to offer services to others and bears risk of profit or loss.

Question 8

What are the two ways in which employment law is governed?

Answer 8

1. Common law, precedent

2. Statue law, employment standards code

Question 9

What does an employment contract constitute?

Answer 9

The employer agrees to pay salary or wages, provide safe working conditions. In return, the employee agrees to be competent, honest, etc.

Question 10

What is a restrictive covenant?

Answer 10

A restriction on the employee, committing them not to work in a particular geographical area or in a particular industry after leaving the position.

Question 11

Are restrictive covenants enforceable?

Answer 11

No, unless a reasonable time and area is specified.

Question 12

What is a “non-solicitation” clause?

Answer 12

A prohibition of a departing employee from soliciting clients or customers of the former employee.

Question 13

What is a “non-competition” clause?

Answer 13

An attempt the keep the former employee out of business.

Question 14

What does termination of employment by an employer require?

Answer 14

1. A reasonable amount of notice, or
2. Pay in lieu of notice, or
3. Immediately with just cause

Question 15

What are some factors that affect the reasonable notice needed for termination by an employer?

Answer 15

• Length of service
• Type of job
• Age of employee
• Qualifications
• Availability of similar employment
• Bad-faith conduct

Question 16

What are some factors that effect the just cause needed for termination by an employer?

Answer 16

• Misconduct
• Disobedience
• Incompetence
• Illness
• Failure to perform in accordance with contract

Question 17

Is running out of work a just cause?

Answer 17

No.

Question 18

Must employees give reasonable notice before leaving their job?

Answer 18

Yes, unless the employer breaches contract.

Question 19

When can an employee sue for wrongful dismissal?

Answer 19

If employment terminated without:

• Sufficient notice
• Pay in lieu of notice
• Just case

Question 20

Who has to obligation to mitigate losses in a breach of contract case?

Answer 20

The employee, can’t just lay around the house trying to rack up damages.

Question 21

What is constructive dismissal?

Answer 21

If the employer changes nature of job without consent. Like demotion, harassment.

Question 22

What is the liability of the employer relating to their employee?

Answer 22

Employer is vicariously liable for torts committed by employee while on the job.

Question 23

What is the main legislation concerning employment law in Alberta? To what extent does it provide protection?

Answer 23

The Employment Standards Code, provides minimum standards of employment.

Question 24

To whom does the employment standards code (ESC) apply?

Answer 24

All employers/employees including the crown unless another statute states the employment standards code is not applicable. NOT to police and agricultural workers.

Question 25

Can an employment contract guarantee greater rights than provided by the ESC?

Answer 25

Yes, but not less.

Question 26

What does Div 1 of the ESC entail? Give some details.

Answer 26

Paying earnings.

Such as wages, OT pay, vacation pay, holiday pay, and termination pay.

Question 27

What does Div 2 of the ESC entail? Give some details.

Answer 27

Employment records.

Detailed statement must accompany each pay cheque as well as the employer being required to keep records of employment for three years.

Question 28

What does Div 3 of the ESC entail? Give some details.

Answer 28

Hours of work.

When there’s a break (1/2 hour every 5 hours), compressed work weeks.

Question 29

What does Div 4 of the ESC entail? Give some details.

Answer 29

Overtime.

OT paid if you work >8 hrs a day, or >44 hrs a week. Time of lieu of overtime.

Question 30

What does Div 5 of the ESC entail? Give some details.

Answer 30

General holidays and General holiday pay.

Nine defined holidays per year in AB. Entitled to holiday pay if you worked 30 days within a year.

Question 31

What does Div 6 of the ESC entail? Give some details.

Answer 31

Vacations and vacation pay.

4% of pay or 2 weeks paid vacay after 1 year. 6% of pay or 3 weeks paid vacay after 5 years.

Question 32

What does Div 7 of the ESC entail? Give some details.

Answer 32

Maternity and parental benefits.

15 weeks maternity leave for moms, plus 37 weeks parental leave for moms, dads, adoptive parents, can be shared. No pay.

Question 33

What does Div 8 of the ESC entail? Give some details.

Answer 33

Termination of employment.

Must be given notice/pay in lieu. Minimums:
1 week if employed >3 months, <2 years
2 weeks if employed 2-4 years
4 weeks if employed 4-6 years
5 weeks if employed 6-8 years
6 weeks if employed 8-10 years
max 8 weeks if employed after 10+ years.

Question 34

When does a layoff become a termination?

Answer 34

If the layoff is not recalled within 60 days.

Question 35

What does Div 9 of the ESC entail? Give some details.

Answer 35

Restriction on employment of children.

If under 15 years - parental consent is required. If required to go to school under school act, cannot work during school hours unless excused for vocational training or enrolled in a WkExp program.

Question 36

What is third party demand?

Answer 36

A collection tool, like garnishment. Enables the employment standards director to require a third party, who owes money to the employer to pay those monies over to the employment standards director instead.