No set hours, but lots of work for contractor
Question: Are there any employment standards ramifications if an independent contractor has no set hours but must complete a certain amount of work, but the work given requires the contractor to work long hours every day?
Answer: Short answer: no. Since I am expected to fill a good portion of the page, I will elaborate.
If a worker is truly an independent contractor, then her work is not regulated by employment standards legislation. As a result, the rules regarding hours of work, overtime, statutory holidays, vacation, termination, and everything else governed by employment standards legislation do not apply.
In my practice, I have seen countless “contractors” that are really employees in all but name. In many cases, the individuals prefer this arrangement, as there are some tax benefits. However, they fail to appreciate that they also give up the protections that employees enjoy.
That said, courts and tribunals will not simply accept the manner in which parties define their relationship. They will look at the underlying factual reality, and determine whether a worker is, in fact, an independent contractor or an employee. There are several tests that can be used, relating to factors such as control over the work done, ownership of tools, opportunity for profit and risk of loss, financial dependence, and others. Ultimately, the question is whether the individual is truly in business for herself (an independent contractor), or whether she is really part of the organization (an employee).
So while the short answer is “no,” the more precise answer is that a true contractor will not be governed by employment standards legislation, but if she is really an employee, then she would be. Even though someone is paid as a contractor, she could always contact the Ministry of Labour in her jurisdiction and file a complaint, alleging that she is an employee and her rights pursuant to employment standards legislation have been breached.
Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He is the author of You’re Fired: Just Cause for Dismissal in Canada published by Carswell, a Thomson Reuters business. He can be reached at [email protected] or (416) 864-8500.
