With more people returning to the office and with concerns about an economic slowdown – 31,000 jobs were lost in July – now’s a good time to get a handle on your employment rights.
“Everyone thinks that they know a lot about employment law; they think they understand what the law says. And most of the information you believe to be true, maybe you believed for years, is, in fact, wrong,” says Lior Samfiru, a Toronto employment lawyer and national co-managing partner of Toronto-based Samfiru Tumarkin LLP.
It’s tempting to look to the web for guidance, but there’s a lot of incorrect information out there. Here are six common myths about rights and the workplace.
Myth: Temporary layoffs are legal, even during the pandemic
In spring 2020, the Ontario government implemented the infectious disease emergency leave, which seemingly allowed employers to temporarily lay off staff if the company was struggling because of COVID-19. This rule expired on July 31, 2022, which means companies can no longer use this reason as an excuse to try to temporarily lay off employees.
Samfiru recently spoke to an employee who’s been off work for two years and whose employer said the leave is now being extended into a layoff. “That's illegal,” says Samfiru, who appears weekly on CP24’s Ask a Lawyer. “Enough is enough. This is a termination of employment,” he says, which means the employee is entitled to potentially 24 months of severance.
Samfiru points out that an employer doesn’t have an automatic right to make significant changes to someone’s job without their consent, including demotions and reductions in hours of work. When that happens, an employee can treat the change as a termination, and pursue severance through a constructive dismissal claim.
Myth: Employers calculate severance fairly
Many people take the first severance offer from their employer when they’re laid off. But in 90 percent of cases, the severance offered is not adequate, and well below what people are owed by law, says Samfiru. “Your employer might be ignorant as to its obligations,” he notes.
“But the more likely reason is your employer hopes you won’t know any better.”
The Severance Pay Calculator can help you see what you may be owed - it can also connect you with a lawyer to get a more accurate figure.
Myth: It’s OK to be given a different job after parental leave
If you’ve returned to work from a maternity or paternity leave, you might find yourself having to take on a different job, at a lower salary. That’s illegal.
“You’re owed the same compensation you had before, and the same job with the same responsibilities. The company can’t keep your replacement, even if they liked that person better,” says Samfiru.
You don’t have to accept the new role or lower level of pay. Not only could it be a case of constructive dismissal, but it may also constitute a human rights violation.
Myth: Your employer gets to decide if you’re an independent contractor
Some employers might try and bring on employees as independent contractors to avoid dealing with Employment Insurance, Canada Pension Plan contributions, vacation pay and tax deductions.
“If you have a regular job, you are an employee; it doesn't matter what the company calls you,” says Samfiru.
It comes down to multiple factors including who controls the type and hours of work, level of pay, and equipment used by the employee.
Samfiru developed the Pocket Employment Lawyer to help Canadians determine whether they’re an employee or not. “Chances are, you’ve been misclassified,” he says.
Myth: Only hourly employees get overtime
Despite what many people believe, salaried employees are entitled to overtime pay if they work more than 44 hours a week - just like their counterparts who work on an hourly basis. If you exceed those allotted hours, you’re entitled to time-and-a-half your hourly rate.
“Whatever your weekly salary is, divide that by 44 and that gets you an hourly rate,” says Samfiru.
He notes that employers are legally obligated to pay staff for any overtime hours worked, and that failure to do so could result in an employee having the ability to resign with full severance pay with assistance from an employment lawyer at his firm.
Myth: You need to accept a job with a new boss
If your company is bought out, you don’t have to accept a job offer with the new owner. You can walk away with a severance package – and you could be entitled to even more if you have a reason for rejecting the offer, such as the job or the salary is not the same.
“Either way, you don’t have an obligation to take an offer,” Samfiru says.
If some of these situations have come up for you at work, or you worry that you have fallen victim to one of the many other misconceptions about employment law and workplace rights,talk to an employment lawyer at Samfiru Tumarkin LLP to discover what your options are.
Have you lost your job? Do you need to find out how much severance you should get?
Contact employment lawyer Lior Samfiru, partner at Samfiru Tumarkin LLP, to get the advice and compensation you need, by calling 1-888-861-4555, emailing Ask@EmploymentLawyer.ca or filling out an online form. His law firm represents non-unionized employees in Ontario, Alberta and British Columbia. Discover your employment rights by watching Lior on Ask a Lawyer every Wednesday at 9:30 p.m. on CP24.