Types of Businesses
Whether your business is small, medium or large, unionized or non-unionized, being proactive in employment law is important. Being organized and getting expert advice can prevent many problems or strengthen your position when problems cannot be prevented. However, different business structures and sizes require different approaches. Small businesses will almost never have an HR department whereas large businesses almost always do. Whether your employees are freelance contractors, non-unionized employees or unionized employees affects their rights in different situations as well as your interactions with them when there are problems.
Types of Employees: Unionized vs Non-Unionized vs Freelancers
The nature of what help you need, what rights your employees have, and what your rights as an employer are all depends on what type of employee you have. Let’s define them.
Unionized employee: This is an employee who is represented by a union who argues for the rights of not just one individual employee but every employee in that group. The priorities of the group as a whole are pushed by the union and the union employees rights are defined in the collective agreement that is negotiated and signed by both the union and the employer.
Non-unionized employee: A non-unionized employee who does not fall into a managerial or executive category of employment is an employee who is not represented by a union and whose rights are not negotiated or defined in a collective agreement. Their rights are solely those given to them by provincial and federal legislation and the employer’s own rules of conduct.
Manager or Executive: A manager or executive is a special class of employee and is treated differently under Quebec law than a non-managerial employee. Their rights are derived from provincial and federal legislation, company policy, as well as the rights defined in their individual employment contracts.
Freelancer: A freelancer, contractor and independent contractor are all technically different positions and treated differently under the law, however the differences can be very technical and circumstantial so for the purposes of this generic definition they will be treated similarly in regards to how they differ from traditional employees. A freelancer, contractor or independent contractor are either external employees or self-employed (and the line between the two is very fuzzy and grey) who provide a service to the business but are either not directly hired by that business or directly employed by that business. Whether an employee is defined as a freelancer, contractor, or independent contractor affects their rights under the law. Depending on the type of work they do and their official designation (which may be argued in court) their rights are derived from provincial and federal legislation as well as their employment contract. However, their rights can also vary based on who their legal employer is designated as, which is also why this designation is frequently argued over in court.
When there is a problem with an employee, what you as an employer can do greatly depends on the type of employee who is causing a problem. Let’s use an example where you are having a problem where an employee will not properly do their job.
- If the employee is a unionized employee you have to follow the procedures laid out in the collective agreement in order to discipline that employee.
- If your employee is non-unionized you have to follow internal guidelines, but these guidelines are still subject to provincial and federal legislation.
- If you have a freelancer or independent contractor then the guidelines you have to follow may be your business’s internal guidelines, the guidelines specified in the contract, or the guidelines of a vendor agency through which you’ve procured the freelancer’s services.
It all greatly depends.
Confused? You’re not alone. Employment law is incredibly complex and definitions can be highly contextual. There are a lot of cases that hinge on whether a worker is a freelancer or independent contractor, a manager or a regular employee. It’s even more confusing when you realize that just because your contract with a worker specifically spells out what type of worker they are, that that designation can still be litigated. What the worker does and the function the worker serves has to align with their official designation. Remember: you cannot contract out of provincial or federal employment rights!!!
When you run into a problem or if you can foresee one coming you should always, always, consult with a local employment lawyer as soon as possible. In order to get the best advice as quickly as possible, the lawyer should be specialized in employment law. Remember that foreseeing and preparing for problems prevents a lot of problems from getting out of hand. You cannot protect yourself or your business properly if you do not have correct information.
Interprovincial & International
We are a Montreal-based law firm with most lawyers who are accredited in both Ontario and Quebec. We are familiar with local legislation that can impact employment practices. So where should you be based in order to hire us? The short answer is Quebec. We are a Montreal law firm and accordingly we practice primarily in the GMA and Gatineau regions.
OLS offers many services to employers. These include (but are not limited to):
- Negotiating, mediating and/or arbitrating with unions
- Investigating claims of verbal, psychological or sexual harassment
- Writing handbooks, codes of conduct and/or employee job descriptions that are in accordance with current provincial and federal legislation
- Advising you on problematic employees (including proper procedures, discipline and termination)
- Advising you on relevant aspects of employment law
- Advising you on non-competition and non-solicitation matters
- Building contracts with employees and unions
- Cutting CSST costs
- Minimizing workplace injury claims
- Designing and helping you implement programs where necessary
- Defending your decisions in mediations, arbitrations and/or court