Commentary: Canada: Gig economy & evolving distinction between contractor & employee

Author: Elizabeth Raymer, Canadian Lawyer, Published on: 26 November 2018

"Contracting in the gig economy", 26 Nov 2018

...In recent decades, workers...have become increasingly mobile...“[C]ontracts” or temporary jobs are increasingly common.  And a worker’s classification is no longer simply employee or contractor but rather employee, dependent contractor and independent contractor...With this shift, employment legislation and the law have had to likewise shift gears...

[Richard] Charney [ global head of employment and labour for Norton Rose Fulbright LLP] sees “more and more activity and a desire of the courts and possibly legislatures to protect vulnerable workers who have the trappings of a contractor but are very dependent” on an employer...An employee is, broadly speaking, someone employed for wages or salary under a contract of employment, who is under the control of the employer and has an implied term of reasonable notice if their services are terminated...

In Ontario, The Changing Workplaces Review, which resulted in Bill 148 to amend the Employment Standards Act, stopped short of integrating dependent contractors into the definition of “employee”...[C]ase law suggests a dependent contractor might have a diminished entitlement compared to an employee in the event of termination...

Class action lawsuits have been launched recently by contractors who range from lawyers to car drivers, notably against Deloitte Management Services and Uber Technologies...Class action plaintiffs normally seek overtime pay, vacation pay and statutory holiday pay, as well as Canada Pension Plan and Employment Insurance payments on their behalf...To avoid litigation, employers must draft contracts carefully...

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Related companies: Uber