While gig work is garnering headlines, it is not new territory for many white-collar professionals. In fact, it has been their norm for many years. For these gig workers, it can be a means to closer alignment with their personal definition of career success.
One BMO survey found that gig work was a voluntary choice for the majority seeking white-collar gigs; they were looking for change, new challenges, a renewed purpose and better work-life balance. However, other surveys have found that gig work is also motivated by the need to make ends meet by many professionals. Whatever your motivation for undertaking gig work, it is imperative that you understand the employment sandbox you are playing in with your gigs.
The lines of that sandbox are determined by how you are classified during your tenure with your employer. Are you considered an independent contractor, dependent contractor or employee by your new employer?
If you are classified as an independent contractor, your rights and responsibilities are limited. For example, you are not covered by much in employment-standards legislation. That means that any hours of work, overtime pay, severance or termination pay are not guaranteed to you, nor are you able to take any paid time off.
However, if you are a dependent contractor, your rights and responsibilities move closer on the spectrum to an employee; in many situations, they overlap by a large margin, such as your entitlement to a reasonable notice of termination.
Of course, if you are classified as an employee, your rights and responsibilities further expand. You are entitled to a package rather than simply pay, and you have the right to take a leave of absence.
Right now, there is no clear-cut way of determining which classification you fall into within the law. Instead, the courts have looked at whether you are performing the gig work as a person in business of your own account or not. Factors taken into consideration have included: the level of control your employer has over your daily activities/schedule; who owns the tools and/or equipment; what is the opportunity for profit and/or risk of loss; and increasingly, what is the intention of both the parties when they signed the contract.
Keep in mind that the employment landscape is changing all the time. This means that the contract you signed coming in may no longer reflect your current work reality. For instance, have you been asked to take on more responsibilities since you started? Are you now economically reliant on this place of employment as your sole employer?
If yes, your original classification as an independent contractor may no longer be valid as you may now be deemed to be a dependent contractor. If that is the case, your contract should reflect that new reality. While it can be tricky to raise this question, it is recommended that you reach out to your employer to discuss your situation.
It is also important to remember that it is not only your employment rights that may shift. If the nature of your relationship to your employer has changed, then your responsibilities may also do so. For instance, that may include IP ownership. As an independent contractor, you typically retain ownership of any IP you created unless the agreement you signed explicitly indicates that your employer retains ownership of it.
If that is how you have operated, but the nature of your relationship has changed or you are being asked to take on a significant new project, then it is another important reason to revisit your existing contract with your employer.
Your responsibilities may also shift in another realm, in your relationship to the government. Depending on how you are classified by your employer, it may be your responsibility to source deductions, such as EI or CPP, and deduct income taxes. Keep in mind that while a dependent contractor’s status may overlap a lot with the status of an employee in your province’s respective employment-standards legislation, you may still be classified as an independent contractor by Revenue Canada.
The employment ground beneath gig work is murky and it is shifting. Where it will ultimately land is still to be determined. For that reason, it is imperative that you keep asking yourself how you want to be classified by the employers for whom you complete gigs. Then you need to stay aware of the actions you need to undertake to align with your wishes, and act accordingly. When the ground shifts, as it undoubtedly will, you will be standing in good stead.
Ritva Nosov, founder, TalentEd Consulting.
Ritva Nosov is the founder of TalentEd Consulting Inc., an advisory firm providing full-service support at the intersection of people, culture and the law. She is the leadership lab columnist for December, 2020.
This column is part of Globe Careers’ Leadership Lab series, where executives and experts share their views and advice about the world of work. Find all Leadership Lab stories at tgam.ca/leadershiplab and guidelines for how to contribute to the column here.
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