Worker recruited online set own hours, used own equipment
A worker who worked remotely — making cold calls on his own schedule with his own equipment for a commission — was an independent contractor, the Ontario Labour Relations Board has ruled.
In April 2023, the worker saw an online posting from Planswell, a financial planning startup company, looking for people to serve as business development representatives (BDRs). The position involved working remotely.
The worker applied and took a sales competency test, on which he scored well. Planswell invited him to a Zoom meeting with about 20 other BDRs. During the meeting, a Planswell representative made presentations about BDR position, which the worker felt was “totally different” from what the job ad had described.
The presentation indicated that BDRs would not get any base pay but would be paid $200 for every financial planner that they could convince to joint a sales meeting with other Planswell staff, who would try to sell their product and services to the financial planner. BDRs would receive the money regardless of how long the financial planner remained on the sales call.
After the presentations, Planswell emailed the worker an “offer of employment.” The worker accepted and he was considered hired. He started working on May 2.
Remote work
The worker used his own computer, telephone, and internet in his home with the assistance of software provided by Planswell. Planswell provided contact information of financial planners in the US, who the worker would “cold call” them and invite them to the sales calls that pitched Planswell products and services. Planswell provided a script for him to follow on the cold calls.
The worker had no set working hours and Planswell didn’t care when he worked as long as he had some results. However, he had two to three mandatory check-ins with Planswell management. A manager monitored his calls and was available if he wanted additional training.
According to the worker, after three weeks of working, Planswell told him that a financial planner he called had to not only join a sales call but also remain on it for at least 30 minutes for him to earn the $200. The worker spoke up about it in a meeting with management, but was “gaslit” and “belittled,” he claimed.
A short time later, Planswell ended the relationship, leaving him feeling angry and “duped.” He felt that Planswell was a “predator employer.”
Employment standards complaint
The worker filed an employment standards complaint, claiming that he was an employee of Planswell and entitled to various entitlements under the Ontario Employment Standards Act, 2000 (ESA). He argued that he interacted regularly with a manager who provided him with regular feedback and his first two weeks of employment was training. Although he was paid by commission, it fell within the definition of “wages” under the ESA, said the worker in claiming two weeks’ loss of wages and vacation pay, two weeks’ pay for loss of reasonable expectation of employment, and $5,000 for pain and suffering that was the result of Planswell’s reprisal of his attempt to enforce his ESA rights.
Planswell countered that the BDR program was an “open proposal for contractors in Canada” and it was always intended that the worker was an independent contractor. It argued that it made it clear to the worker and others in the Zoom presentations that it was a contractor position with no tracking of hours and they could work other jobs if they wanted to.
The company also claimed that it told the worker to “try out” the contractor position first and if it went well, it would consider taking him on as an employee. This was a way Planswell recruited full-time employees, it said.
An employment standards officer declined to issue an order for Planswell to pay the worker ESA entitlements for termination of employment. The worker appealed to the Labour Relations Board.
Employer’s control
The board noted that the test for whether someone is an employee or an independent contractor has largely to do with the level of control the employer has over the worker’s activities, although there were other factors to consider as well.
The board found that the worker was free to set his own hours of work and could take time off without approval from Planswell. He was also free to work other jobs. Although the worker interacted with a manager, it wasn’t regular control in a normal employment relationship, said the board in finding that Planswell had little control over the work.
The board also found that the worker’s use of his own computer, phone, and internet at home suggested that he was an independent contractor, as did the fact that how much he worked could affect whether he suffered a loss or made a lot of money.
The board determined that the worker “performed services as a person in business on his own account” and was an independent contractor, not an employee as defined by the ESA. The worker’s appeal was dismissed. See Waller v. Planswell Inc., 2023 CanLII 74717.
