Work: Getting A Job And The Law

by Gordon Crann and Alan Redway, Q.C.

Gordon Crann and Alan Redway, Q.C. are lawyers with Redway & Butler LLP, Barristers & Solicitors. They provide legal advice and assistance in all areas of the law, except criminal law. Alan is a former Federal Housing Minister, MP for Don Valley East and former Mayor of East York. Gordon is a former East York Councillor.

For many newcomers, trying to get their first job in Canada is most frustrating. Employers' demands for Canadian experience appear to be what is called a 'Catch-22' (you need Canadian experience to get Canadian experience).

Beyond this common demand for Canadian experience, though, lies a complex and confusing employment law minefield. How successful a newcomer is in getting through this legal minefield may determine whether their working life in Canada will be happy or sad.

Some confusion is caused because federal laws apply to a few industries, like banks, airports and airlines, while provincial laws cover most workplaces. In general, however, the same legal protections exist both provincially and federally.

For example, both the Ontario Human Rights Code and the Canadian Human Rights Code make it illegal to discriminate against people when hiring on the basis of, among other things, ethnic origin, race, colour or religion. Under these Human Rights Codes, employers cannot directly or indirectly ask about a person's race, ethnic origin, colour or religion in job ads, application forms or interviews.

An exception is made for employers with employment equity programs designed to support the hiring of people whose group has faced discrimination in the past.

Employers also have a duty to provide for religious needs in the workplace, such as allowing Muslim women to wear hijab on the job, or for workers to book time off without pay on Friday afternoons to go to the mosque.

If you think you are being discriminated against, write down what happened, then contact the Ontario or Canadian Human Rights Commission, a legal aid clinic or a lawyer.

Another problem many skilled immigrants run into is that many professions and trades have rules limiting who can do such work in Canada. The profession or trade often has rules dealing with:

  • entry standards for people working in their field;
  • acceptance of foreign degrees, training or experience; and
  • the issuing of licences required for working in their field.

In some professions, it is illegal to work or even use the title of the profession if the professional body does not approve you. In other professions, you can do the work of the profession, but you must enrol with the professional body if you want to use the title of the profession. Other professions are not regulated by law, but may have voluntary professional bodies.

If you are interested in learning about the legal rules for entering a profession or trade, a good place to start is the Access to Professions and Trades in Ontario web site at www.211ontario.ca/apt/. There are also community agencies - like the Ontario Network for Internationally-trained Professionals (ONNIP) with a web site at www.onnip.ca - that have programs to assist newcomers in meeting the entry rules for specific professions and trades.

Perhaps the most confusing part of getting a job for newcomers, however, is understanding the different legal rights related to the many types of employment offers found today. Jobs range from a full-time permanent job to an independent contractor (a self-employed businessperson) with many variations in between.

The most important point to remember is that not all employment offers come with the same level of legal rights.

At one extreme is a full-time permanent job. This brings with it the legal protection of being an employee, in addition to the income security a regular paycheque provides.

Employees are protected under either the Ontario Employment Standards Act or the Canada Labour Code. These cover: hours of work, minimum wage, overtime pay, paid time off for public holidays, vacation time, vacation pay, pregnancy and parental leave, notice of termination, severance pay, equal pay for men and women, and collection of unpaid wages, and more. Other laws protect employees' health and safety in the workplace.

If the job is unionized, there will be additional rights and benefits found in the collective agreement between the union and the employer. These rights are enforced through a grievance process. If the job is non-unionized, similar additional protections and benefits may be found in an employment contract with disputes ultimately dealt with by going to court.

At the other extreme is being an independent contractor. (Contract: a binding agreement between two or more people or parties.) An independent contractor does not have the same employment standards and workplace health and safety rights provided to employees. Also, they are not covered by employment insurance. As a result, when their contract ends independent contractors do not receive employment insurance payments, and they do not have access to government counselling, training or wage subsidy programs.

Between these two extremely different types of work are many kinds of jobs, including temporary, part-time, on-call, contract, seasonal and day-labourers.

It is important to find out whether you will be an "employee" or an "independent contractor", as this will determine your legal rights.

Here are some of the differences to consider:

  • employees usually have a supervisor who can tell them what to do and how it should be done, while independent contractors determine how to complete the job subject to the contract;
  • employees usually cannot hire someone to do their job, while independent contractors can usually either hire their own employees or can arrange for a sub-contractor to do the job;
  • employees usually work at the employer's place of business using tools and equipment provided by the employer, while independent contractors may work from their own offices or homes using their own tools and equipment;
  • employees are paid regularly, while independent contractors are usually paid for completing a job and must provide an invoice;
  • employees usually work regular hours and days, while independent contractors decide when they will work;
  • employees usually work for one employer, while independent contractors may work with one or more companies at a time subject to the contract;
  • employees are usually hired for an ongoing position or a set period of time, while independent contractors are usually hired to finish a certain project; and
  • employees have their income tax, Canada Pension Plan premiums and employment insurance premiums deducted from their wages and submitted by the employer to Revenue Canada, while independent contractors are responsible for calculating and submitting their own income tax and Canada Pension Plan premiums.

There are advantages and disadvantages to each kind of job. Many people work successfully as independent contractors. However, you should be sure of what you are getting into before signing a contract.

The following are tip-offs that what you are being offered is probably not a job, but a business opportunity as an independent contractor:

  • are you invited to a meeting with a large number of other people to hear what sounds like a high-powered sales pitch?
  • do they want you to pay for taking a course or for your own training?
  • does the amount of business you bring in solely determine your pay?

Whatever you do, if you find yourself in this kind of situation, make sure not to give in to the pressure they may apply to have you sign a contract at the meeting.

Ask to have a few days to read over and consider the contract, then go to a legal aid clinic or a lawyer for advice on your legal rights and obligations under the contract.

If they are not willing to let you do this, then you can be pretty sure that they want you to take all the risks and obligations, while they get important legal rights based on the wording of a contract their lawyer wrote.

In such circumstances, it is almost certain that you will find yourself as an independent contractor, not an employee.

CNM