Employment Law

Control Test

Degree of control exercised over an employee is greater than an independent contractor

Four Aspects of Control Test

1. The employer’s power of selection of the employee

2. Whether the employer paid wages

3. The employer’s right to control the method of doing the work

4. The employer’s right to suspend or dismiss the worker

When is the Control Test inadequate?

When involving highly trained workers; where employer did not control the professional/highly skilled worker in how they did the task

What does the Entrepreneur Test/Fourfold Test consider

Whose business is it

Four factors of the fourfold/entrepreneur test

1. Control (as in the “control test”)

2. Ownership of tools

3. Does the individual have a chance of profit

4. Who bears the risk of loss

Other names for Organization Test

• Integration Test

• Economic Dependency Test

What does the Organization Test do

• Looks at the integration of the worker into the employer’s business and asks

• Is the person an essential part of the employer’s organization?

  • If yes, then the worker will likely be considered an employee

Obligations of Employer

• Pay

• Safe workplace

  • Physical safety

  • Harassment free

Obligations of Employee

• Competent

• Honesty and Loyalty

• Punctuality

• Act in employer’s best interest

• Fiduciary Obligations (some cases)

What is a Fiduciary Obligation

An implied term of employment contracts and arises when either party has enough power or discretion to use information in a way that could negatively affect the other party’s interests.

What fiduciary obligations do

aim to protect the vulnerable party in work relationships involving a high level of trust and confidentiality

What happens when the employee is a fiduciary

they added obligations during and after the employment relationship

• to refrain from taking advantage of maturing business opportunities for which the employer has been negotiating

• to refrain from soliciting former customers or clients for a reasonable period of time after the termination of employment

Is reasonable notice of termination required of both employer and employee

yes, unless written contract provides specifically (where no just cause)

What courts consider in reasonable notice

• length of service

• type of job

• age of employee

• qualifications

• availability of similar employment

• bad faith conduct

Actions regarding incorrect notice

• an employee discharged without adequate notice can sue for wrongful dismissal

• An employee can leave without notice when required to work in dangerous conditions or when work involves immoral/illegal activities

Just Cause Dismissal

• requires no notice

• must be based on employee wrongdoing or failure to perform

Types of dismissals

• summary dismissal: theft, assault, gross negligence, theft

• performance related dismissal: tardiness, quality of work, failure to take direction

Employment contract may be breached when

• the employer, unilaterally, without proper notice, changes significant term of the employee’s employment

• mistreats employee making the working conditions difficult

Constructive Dismissal

• compensation based on reasonable notice, lost benefits, and pension rights

• employee must mitigate losses

Statutes ESA designed to protect employees by setting minimum standards forr

• wages

• hours of work, overtime, and rest periods

• vacation and holiday entitlements

• maternity and parental leave

• termination

(does not apply to certain professions e.g. lawyers, physicians, architects, accountants, chiropractors)