Employment Law Flashcards
employment is?
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.
historical employment relationship?
master servant
- employment relationship was likened to this.
difference btw employee + independent contractor?
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
criteria to decide employment relationship
- control test
- who owns the tools
- who profits/losses from work?
- wage/salary or paid for job
- organization test
what is the control test?
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
what is organization test?
- 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?
how is employment law governed in two ways?
- common law principles, precedent
2. statute law: provides minimum protections for all employees -Employment Standards Code
if there’s an employment grievance where can the employee find remedy?
- sue in court
- employee standards department - avoid court.
*if seek remedy one way, precluded from doing the other
2 types of employees?
- wanted: highly specialized, high credentials
- wanter: easily replaceable, dont need degree/credentials.
sue if wanted, employment standards board if wanter
what is a restrictive convenant?
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
when is restrictive covenant unenforceable?
when no reasonable time or area is specified.
non-solicitation vs non-competition
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
two ways to terminate employment by employer
- fired: entitled to nothing - immediate termination with just case
- laid off: reasonable notice period or payment in lieu contract may stipulate amount of notice
reasonable notice depends on?
- length of service
- type of job
- age of employee
- qualifications
- availability of similar employment
- bad-faith conduct
why may one terminate with just cause?
- misconduct
- disobedience
- incompetence (employee provide opportunity for improvement)
- illness (duty to accommodate tho)
termination: wrongful leaving of the employee
- 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.
termination by wrongful dismissal of employee
- 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)
termination by constructive dismissal of employee
- breach of contract if employer changes nature of job without consent
- employee must mitigate but can sue.
liability of employer
- what are employer obligations?
- 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
minimum standards of employment for Alberta employers come from?
employment standards code + employment standards regulation
employment standards code
- to whom does it apply?
all employers/employees
EXCEPT
police, agricultural workers, union
employment standards code: minimum guarantees?
employer can give you more than the act but cannot give you less than minimum
employment standards code: paying earnings
- 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
employment standards code: employment records
- give pay stubs
- keep records of employee for 3 years after employment
employment standards code: hours of work
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.
employment standards code: overtime
- more than 8 hours/day or 44hrs/week = time off in lieu, or paid time + a half
employment standards code: general holidays + holiday pay
work on stat holiday = regular pay + 1.5 pay.
employment standards code: vacations + vacation pay
4% of pay or 2 weeks paid vacay after 1 year.
- 6% of pay or 3 weeks paid after 5 years
employment standards code: maternity + parental benefits
important
- 16 weeks maternity for moms
- extended 62 weeks parental leave : can be shared.
- without pay*
employment standards code: termination of employment
- 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.
layoff becomes termination when?
when not recalled within 60 days.
employment standards officers
- file complaint with employment standards department (lesser skilled)
- or commence a lawsuit (highly skilled)
protection of wages, OT and entitlements
- 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
Minimum wage?
regulation, easily changed
current $15/hr
