I hate to see my clients not getting paid what they are worth.
Maybe they aren’t getting a high enough salary. Or, if they are self-employed, maybe they aren’t charging enough.
But there’s another way that I have seen, a rather sneaky one I might say, that sometimes robs people of financial rewards that are legally theirs.
It comes down to their legal employment status.
What does “legal employment status” mean?
In its simplest terms, legal employment status means how the law views the relationship you have with the person who hired you. In Canada, there are two main possibilities.
- You are an employee and the person who hired you is the employer
- You are a business/self-employed, and the person who hired you is a client.
When it comes to the law and your rights, there is a huge difference between the two.
If you are an employee, the law says you are entitled to:
- Benefits (e.g. pension contributions, sick days, health plan)
- CPP contributions (and the employer must pay a matching amount on your behalf)
- EI contributions (and the employer must pay a matching amount on your behalf)
- WSIB contributions (the employer pays this)
- Vacation time and vacation pay
- Various labour law protections (sick days, minimum wage, severance pay, termination regulations, etc.)
If you are a business/self-employed, you are not entitled to any of the above. You are, however, entitled to certain other advantages that employees aren’t.
- Tax deductions on work-related expenses (e.g. mileage, banking fees, supplies)
- A lower, business income tax rate (if you’re incorporated)
The problem is that sometimes the person making the hiring decision (the employer, or the client) wants to treat you as one, when you are in fact the other (in the eyes of the law). The most common situation I see is companies hiring people as contractors, when the law would say they are employees.
Why would companies do this? Because it’s beneficial to them, especially financially.
How businesses benefit
Let’s say you are really an employee, but the company you work for hired you as a contractor. The company now doesn’t have to pay their portion of CPP and EI, or for WSIB. They also don’t pay for any benefits, sick days, vacation days, etc. They also don’t have to provide any equipment, tools, office space, or supplies, so they save a lot on expenses.
From your perspective, that means:
- You don’t have any money contributed to your CPP, so the amount of your CPP pension at retirement won’t be as high as it should have been
- You don’t have any money contributed to EI. Without those contributions, you can’t apply for EI should you become unemployed
- There is no income tax taken off of your pay, so come tax time you will have a large tax bill to pay.
- Your employer didn’t pay any WSIB contributions. Therefore, you don’t have WSIB protection. If you are injured on the job, you can’t file a claim.
- You have to supply all equipment and are responsible for all expenses related to getting the work done.
Let’s look at a couple of examples.
Dana
Dana is a bookkeeper who has 11 clients. She has just landed a new “independent contractor” short-term contract with Company A. Her contract states the following.
- She will not be provided with any workspace
- No hours are stipulated but the work must be finished by June 15.
- She must use her own equipment
- She will be paid in 3 equal installments, each at the end of 1/3 of the work, and she must submit invoices to be paid.
- She will be paid within a week of submitting the invoices
- She will receive no benefits (pension contributions, vacation pay, etc.)
- No CPP, EI or income tax will be taken off her pay
Dana sounds like a true, independent contractor, rather than an employee.
Now let’s take a look at a second example.
Walter
Walter is also a bookkeeper. Like Dana, he normally has 11 clients. He just landed a new “independent contractor” short-term contract with Company B. He will be doing the same work as Dana. His contract states the following.
- He must work on site
- He must work M-F from 8–4
- He must use the company computer system
- He reports to Manager E.
- He will be paid regularly every two weeks
- He must fill in time sheets
- He will receive no benefits (pension contributions, vacation pay, etc.)
- He will have no deductions taken off his pay (income tax, CPP, EI, etc.)
You’ve probably noticed that although Walter’s contract says he’s an independent contractor, the law would probably say he’s actually an employee—he has set hours, must work at the company’s location, reports to a manager, uses the company’s tools, etc. So in his case, he is not being given the benefits and deductions that the law would say he is entitled to. Plus, he may be claiming work expenses on his income tax that he is not allowed to.
Actually, it’s not correct for me to say that he is missing out on benefits. That’s because, regardless of what your contract says, if the law sees the relationship as employee-employer, that’s what you are. And if the law sees the relationship as contractor-client, that’s what you are.
So even if your employer hires you as a contractor, if the true nature of your relationship is one of employee-employer, the hirer, legally, must treat you as such. (However, getting them to actually do that might be another story.)
But wait a minute. Aren’t Dana and Walter doing the same work?
Yes, they are.
So, we have two workers, with the same profession, who are doing the same work. But one is an employee, the other an independent contractor.
How does that work?
We’ll go into that in our next post.
