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Employee or Independent Contractor

Employee or Independent Contractor? Employment Lawyers in Calgary Explain

It is important to understand the difference between an employee and an independent contractor. Knowing the difference and understanding which category you fall under will determine what benefits and protections you are entitled to under the law and the characterization of your income, whether it be employment income or business income.

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It is important to understand the difference between an employee and an independent contractor

Some of the perks that come with being an employee include employment insurance, vacation pay, extended health benefits, pension plans, and severance pay. As an independent contractor, you may not be entitled to all the same benefits. However, there are different perks that come with self-employment, including greater tax deductions, working as you please, working for multiple clients, and maintaining control over your work and profits.

Many times the Court must determine whether an individual is an employee or independent contractor in their work relationship. The question to ask is whether the work relationship is a contract of service, which establishes an employer-employee relationship, or a contract for service, which indicates the party being paid is an independent contractor. To answer this question, the Court looks at the following factors:

  • Control
  • Ownership of Facilities, Supplies, Tools and Equipment
  • Chance of Profit or Risk of Loss
  • Integration

Control

In considering the first factor, the question to ask is: how much control does the alleged employer have over the alleged employee? To answer this, we must look to see whether or not the employer can require attendance, require notice for sick days, or require you to obtain permission to work for another party.

If the answer to any of these questions is yes, the relationship is likely to be viewed as an employer-employee relationship. The method of payment is another factor that may be considered as well. If you are being paid on an hourly, weekly, or monthly wage or a salary, then you are likely to be viewed as an employee. However, if the payment is made in lump sum or installments after you send an invoice, you are likely to be viewed as an independent contractor. The amount of control in the service itself also plays a role in making this determination.

If the payer requires a specific result but does not dictate the method to achieve that result, then you are likely to be viewed as an independent contractor. If the payer does give instruction as to how and when work is to be done and supervises the worker throughout the service, then it is likely an employer-employee relationship.

Ownership of Facilities, Supplies, Tools and Equipment

The second factor to consider is the ownership of the facilities, supplies, tools and equipment. If the owner is the party being paid, then this will be indicative of an independent contractor. If the owner is the party paying for the service, then this will strengthen the argument for an employer-employee relationship.

Chance of Profit or Risk of Loss

Where a worker has the opportunity to earn more by completing projects quicker to take on more projects or by finding ways to limit expenses, they will be viewed as an independent contractor. In this case, the worker is in control of their profit, by taking particular steps and by working more or less they can influence their profits and losses. Employees typically do not have the ability to earn more by completing projects quicker than expected, they may earn bonuses by doing so but this does not mean they can increase their profits or mitigate losses from their income as their remuneration is usually a set wage or salary.

Integration

The final factor to look to is the integration of the worker in the payer’s business. Where the worker is not self-employed, is a part of the payer’s business and depends on that one particular income source, they are likely to be viewed as an employee. Furthermore, the more integral a worker is to the payer’s business, and the longer the working relationship is, the more likely the individual will be considered an employee. An independent contractor will rely on several income sources and act on his or her own behalf.

Conclusion

All the factors listed above are to be considered collectively in determining whether you are an employee or independent contractor. Although there may be a written contract, this does not dictate what they relationship is. Signing a contract that states you are an independent contractor does not disentitle you to the rights and protections you would have as an employee. If by applying the factors above, your relationship is indicative of an employer-employee relationship, the Court may disregard your written agreement.

Do not wait to schedule an appointment with us. Contact Osuji & Smith Lawyers for all your employment law-related inquiries at 403-283-8018 or fill out the online contact form for more details.

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Osuji & Smith has just won the 2020 Three Best Rated for Best Rated Employment Lawyers in Calgary. This is our fourth win having won it in 2017, 2018 and 2019. We have also won the 2020 Three Best Rated for Best Rated Business Lawyers in Calgary for 2020. This is our second win having won it in 2019. Osuji & Smith has also been nominated for the 2019 and 2020 Employer Awards for Newcomer Employment, given by the Immigration, Refugees and Citizenship Canada (IRCC). We have also been nominated for the 2019 Hope Awards, Aspen.

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Osuji & Smith Lawyers is known for its friendly team of legal professionals. We are client-focused and also driven to produce practical results for you.For years, our clients have trusted our experience and skill in solving their legal matters. Our skill is based on knowledge of the law and our ability to interpret it depending upon the facts of each case. Our dedicated team of lawyers is constantly striving to find unique resolutions for your complex issues. Our office is conveniently located in Kensington close to downtown Calgary, Alberta. For easy access, we also have free parking available for our clients.

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JENNIFER L.

“Charles was fantastic to work with! He was very professional, made sure I knew my options and supportive to the end. He successfully handled my employment matter and I would hire Charles again if needed.”

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Quite frankly, Osuji & Smith is the best. Charles and his team handled my Divorce process with ease. Their level of flexibility and professionalism is second to none! Would advise the general public to contact Osuji & Smith for all their legal needs.

RON H.

I would like to thank Nitin Srivastava of Osuji & Smith for his help on my recent case. He was very professional and knowledgeable and helped me to make the proper decision regarding my case. I would recommend Nitin to anyone needing advice on labour and employment law.

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My partner and I had a meeting with Charles today. He was very welcoming and so full of knowledge! Not only that but most importantly, honest. He helped us understand our situation and did so without us retaining him and charging us a ton of money! Such a different experience than any other lawyer I had dealt with in the city. He did not make us feel as if we were just a dollar sign and actually seemed to care. That is not common in lawyers. You’re awesome Charles and we would most definitely recommend you to anyone!

JOSEPHINE O.

Charles Osuji has been my legal advisor for some time now. From the first day I met with him, I came to the conclusion that being brilliant and respectful has nothing to do with race or colour of skin. If you need a smart, efficient, competent, hardworking and professional lawyer, Charles Osuji embodies all these qualities. Charles is a very patient, considerate, hardworking lawyer that works 24/7 for the best interest of his client. He has been handling all my legal matters and has done an amazing job. I should note that he works with a dynamic and friendly team. I highly recommend him and his law firm, Osuji & Smith!

FOERSTER D.

I had a great experience with Charles Osuji and his staff! Very professional and friendly and helpful. They are very reasonable with their hourly rates. I highly recommend Charles Osuji and Osuji & Smith to all my friends and anyone out there who is looking for professional help.

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Had a great experience dealing with Charles. He looked after our best interests and finished our contract in good time. We will be using Osuji and Smith in the future.

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Osuji and Smith handles all of our personal and business needs and we could not be happier with them. They are always available to answer any questions and provide sound advice. If you are looking for a great law firm, call them and they will take care of you every step of the way.

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They are Excellent and I had a wonderful experience especially Mr. Charles! He is very friendly and explained us all the outcomes. And we won the case!

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Charles and Colleen provided me with some legal and real estate services. They are very professional, competent and on time. Their fees are very reasonable too. I highly recommend Charles Osuji and to anyone looking for a competent and knowledgeable lawyer that can resolve your case quickly at a reasonable price. Thanks, Osuji and Smith for the excellent work!

BORIS N.

We hired Charles to help us with Employment law. He was very knowledgeable on the matter, he worked very efficiently and he achieved a favorable result in a short period of time. He was also very reasonable priced. I highly recommend him to anyone in a need of legal advice and services.

OLA F.

I came to Osuji & Smith to review a commercial lease for my new business location. Charles and Alessia thoroughly reviewed my lease with me so that I understood it, and provided me specific notes about the present lease to take back to the landlord. Charles exceeded my expectations by also giving me additional tips on legal contracts on top of sharing some business advice that will be invaluable to the future of my business and my success as a new business owner. I feel the value I received from this office is why I will surely choose them again in the future.

JAMES G.

I worked solely with Charles on an employment case that was very personal to me. From the get go he displayed nothing but the highest standard of respect, knowledge, case fact competency and actually cares about your interest & well being. Always reachable even whilst I was overseas in multiple countries. His consistency, experience, historic reference, and flawless case punctuality are very noticeable in the way he handled every single matter. I can’t thank him enough for his honest work, support, and dealings. Osuji and Smith law-firm is an amazing establishment. Thank you again, Charles.

JOSEPHINE O.

Charles Osuji has been my legal advisor for some time. From the first day I met with Charles I came to conclusion that being brilliant and respectful has nothing to do with race or colour of skin. If you need a smart, efficient, competent, hardworking and professional lawyer, Charles embodies all these qualities. Charles is very patient, considerate, hardworking lawyer that works 24/7 for the best interest of his client. He has been handling all my legal matters and had done an amazing job. He works with a dynamic and friendly team. I highly recommend him and his law firm Osuji & Smith Lawyers.

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I had the opportunity to have Charles Osuji providing legal services for myself and I can say that he and his team dealt with my matter in a very professional way. They are very responsive and Charles worked even on a Sunday to have my issue solved as soon as possible. Reasonable priced and more than that, he offered me the most cost-efficient alternatives for my case. Highly recommend this law firm.

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I hired Charles for a prenuptial agreement. He is amazing from day 1. Unlike other corporate family lawyers, Charles calls you back even after 9 pm and even on a Saturday or Sunday. You can directly talk to Charles anytime unlike other lawyers who are not so easy to talk. His prices are reasonable and he is very professional. I would highly recommend Osuji & Smith for your legal needs.

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Charles is amazing. He handled my divorce efficiently and professional and put up with some craziness on my part. Would definitely recommend!

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