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blaw final > Employment Law > Flashcards

Employment Law Flashcards

1
Q

employment is?

A

a contractual relationship

  • rights and obligations of the employer and employee are established by contract
  • if breached, either party can sue for damages or claim the contract was terminated by the breach.
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2
Q

historical employment relationship?

A

master servant

- employment relationship was likened to this.

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3
Q

difference btw employee + independent contractor?

A

E: in master-servant relationship; acts under direction/supervision of Master; involves contract in which the employee agrees generally to serve the employer

IC: works for self; acts independently, provides specific service; involves contract to do a particular job

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4
Q

criteria to decide employment relationship

A
  1. control test
  2. who owns the tools
  3. who profits/losses from work?
  4. wage/salary or paid for job
  5. organization test
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5
Q

what is the control test?

A

test for employment relationship

  • assess degree of control excercised by person paying for the service
  • told what to do = employee
  • free to choose how to do job = independent
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6
Q

what is organization test?

A
  • assess whether worker is integral part of organization of the employer
  • hierarchy of control: is employee on it or no?
  • free to offer other services at the same time?
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7
Q

how is employment law governed in two ways?

A
  1. common law principles, precedent

2. statute law: provides minimum protections for all employees -Employment Standards Code

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8
Q

if there’s an employment grievance where can the employee find remedy?

A
  1. sue in court
  2. employee standards department - avoid court.

*if seek remedy one way, precluded from doing the other

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9
Q

2 types of employees?

A
  • wanted: highly specialized, high credentials
  • wanter: easily replaceable, dont need degree/credentials.

sue if wanted, employment standards board if wanter

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10
Q

what is a restrictive convenant?

A

non-competition type of clause
- if quit/leave job, prohibited from working for competitor for at least a period of time, and maybe in certain geographical area or particular industry

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11
Q

when is restrictive covenant unenforceable?

A

when no reasonable time or area is specified.

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12
Q

non-solicitation vs non-competition

A

N-S: not as restrictive as N-C; doesnt prohibit from working, but can’t solicit clients

N-C: cannot work in industry for period of time in geographical area

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13
Q

two ways to terminate employment by employer

A
  1. fired: entitled to nothing - immediate termination with just case
  2. laid off: reasonable notice period or payment in lieu contract may stipulate amount of notice
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14
Q

reasonable notice depends on?

A
  • length of service
  • type of job
  • age of employee
  • qualifications
  • availability of similar employment
  • bad-faith conduct
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15
Q

why may one terminate with just cause?

A
  • misconduct
  • disobedience
  • incompetence (employee provide opportunity for improvement)
  • illness (duty to accommodate tho)
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16
Q

termination: wrongful leaving of the employee

A
  • unless employer breached contract, employee must give reasonable notice, otherwise may be sued for breach.
  • may not take confidential info from the employer
  • entitled to quit without notice if something is dangerous, unreasonable, illegal.
17
Q

termination by wrongful dismissal of employee

A
  • employee sue for wrongful dismissal is terminated without
    • sufficient notice
    • pay in lieu of notice
    • just cause

remedies: amount of damages based on reasonable notice period
- employee has obligation to mitigate losses (find a new job)

18
Q

termination by constructive dismissal of employee

A
  • breach of contract if employer changes nature of job without consent
  • employee must mitigate but can sue.
19
Q

liability of employer

- what are employer obligations?

A
  • employer is vicariously liable for torts committed on the job.
  • only in employer-employee relationship
  • can be liable outside of working hours
  • obligations:
    income tax act, canada pension act, worker’s compensation act
20
Q

minimum standards of employment for Alberta employers come from?

A

employment standards code + employment standards regulation

21
Q

employment standards code

- to whom does it apply?

A

all employers/employees
EXCEPT
police, agricultural workers, union

22
Q

employment standards code: minimum guarantees?

A

employer can give you more than the act but cannot give you less than minimum

23
Q

employment standards code: paying earnings

A
  • earnings = wages, OT, vacation pay, termination pay.
  • paid within 3 days if job is ended.
  • limitations on deductions: none allowed if others have access to cash/property
  • employer must notify of change in pay before the pay period commences
24
Q

employment standards code: employment records

A
  • give pay stubs

- keep records of employee for 3 years after employment

25
Q

employment standards code: hours of work

A

work more than 5 hrs = entitled to 30 min rest period.

- require 1 day of rest each week, or 2 days of rest after 2 weeks of work.

26
Q

employment standards code: overtime

A
  • more than 8 hours/day or 44hrs/week = time off in lieu, or paid time + a half
27
Q

employment standards code: general holidays + holiday pay

A

work on stat holiday = regular pay + 1.5 pay.

28
Q

employment standards code: vacations + vacation pay

A

4% of pay or 2 weeks paid vacay after 1 year.

- 6% of pay or 3 weeks paid after 5 years

29
Q

employment standards code: maternity + parental benefits

important

A
  • 16 weeks maternity for moms
  • extended 62 weeks parental leave : can be shared.
  • without pay*
30
Q

employment standards code: termination of employment

A
  • proper notice or pay in lieu
  • no notice if terminated for just cause or if seasonal work
  • written notice required for minimum notice of termination.
  • notice given to employee 1 week if employed <2 years, 2 weeks if more than 2 years.
31
Q

layoff becomes termination when?

A

when not recalled within 60 days.

32
Q

employment standards officers

A
  • file complaint with employment standards department (lesser skilled)
  • or commence a lawsuit (highly skilled)
33
Q

protection of wages, OT and entitlements

A
  • protection of pay and entitlements for unpaid workers where employer cannot pay
  • wage, OT, employee entitlements are treated as secured interest = held in trust for employees
34
Q

Minimum wage?

A

regulation, easily changed

current $15/hr

blaw final (7 decks)

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