What would go into proving you are an employee and not a contractor? To my understanding, in Canada, an employee is given more protection and entitlements under the law, than a contractor. What would go into proving one is an employee and not a contractor? Would this be akin to "suing the employer in court"? Which court or tribunal would it be brought to? Does it not make a difference if a person is a contractor or employee until a dispute arises and it becomes unclear which laws (e.g. labour laws) apply?
Raise the question with your employer If you believe that you are an employee and not a contractor then there is presumably something you want from your employer. This may be additional wages and entitlements that you would have or will become entitled to for past or future work respectively. Or you may have been injured and want workers' compensation. Or terminated and you want redundancy pay. Whatever it is, work it out and raise the issue with your employer. You might want to consult an accountant or union to help you. They may acknowledge that you were incorrectly classified and give you what you want. Winner, winner, chicken dinner! Or they may dispute it. If so, you need to follow the dispute resolution processes at your workplace. These typically involve informal discussions, escalating to mediation and then to a workplace tribunal run by the government. You will almost certainly want to consult a lawyer or union to help you - given that you don't know where to start the learning curve is likely to be too steep. In virtually every jurisdiction if people are employees at law they can't choose not to be. in british-columbia the relevant law appears to be the Employment Standards Act although it's not unheard of in edge cases for a person to be an employee under one law (e.g. workers' compensation) and a contractor under another (e.g. income tax). From the linked site: The overriding question is “whose business is it?” Is the person who is doing the work doing it as a person in business for themselves? If you are working "for" your own business you are probably a contractor. If you are working "for" your employer's business you are probably an employee. For example, if you are an accountant with several dozen clients, maintain your own business premises and charge for your advice based on the amount quoted rather than by the hour, you're a contractor. If instead, you have 2 clients, work from their premises at set hours and get paid by the day or week, you're an employee with 2 jobs. In edge cases these are not cut and dried - Google are Uber driver's employees. In Australia: no. In California: yes. In the UK: yes.
As a adult of sound mind, you are responsible for your actions. Background checks for job applications are common place to determine suitability. The employers have the right (and responsibility) to choose what is in their best interest. If through your previous and present actions, they come to the conclusion that you will become a liability to their interests, they will determine that you are not suitable for the position. Not being suitable for a position is not a discrimination, but a determination of fact. Rights and responsibilities go hand in hand. The same is true for the employers. They too have the obligation to act in their own that of their other employees that of their clients interests. In cases where a judge comes to a conclusion that the rights of others are being impeaded, they will most likely decide for that party. It is unlikely that a judge will assume that an individual is the center of the universe and that everyone else must revolve around that individual.
Not a lawyer, but: In many countries, a purchased item is your property once you removed it from the premises of the seller. In practice, this rarely makes a difference. You have entered a contract with the seller where the seller has to deliver the product, and you have to pay the money, you did your part, they have to do their part. There would be a difference if the item was stolen while in the store, or damaged by fire, or if the store went bankrupt and bailiffs took the item. If these rules apply in your country, then what they did is not theft, otherwise it would be theft (in all countries, if the store removed the door from your home after it is installed, that would be theft). You paid for a door, the store owes you a door. You have a legal contract. Both sides are bound by that legal contract. They have to do what the contract says (delivering the door that was displayed in the store), if they can't, then they have to do the nearest thing that isn't to your disadvantage, like delivering a new door. Or possible a different door that was on display. They can't just declare your contract invalid because it suits them better. That wouldn't be the case if this would put the store at an unacceptable disadvantage. For example, if thieves had broken into the store and stolen ten doors, including yours, the store might get away with returning your money. Since they intentionally sold your door again to someone else, I don't think they could use this as an excuse. I'd go once more to the store and ask them whether they want to deliver a door to you, according to your contract with the store, or if they want you to get a lawyer. A letter from a lawyer might work wonders. (Or of course the lawyer might tell you that I'm completely wrong, but they don't know that, so telling them that you will hire a lawyer might be enough).
You are probably an employee Answer these questions: Can you say “no” when the University offers you work? Or vice-versa, can they say “no” when you want to work? Can you subcontract the work? That is, can you hire someone to do what the University hired you to do? Do you control how and when you work? For example, when you break University rules are you subject to University discipline or is this treated as a breach of contract? Do you provide your own tools and equipment? Can you make a profit or loss (if you get paid by the hour the answer is “no”)? Do you take out your own public liability and/or professional indemnity insurance? If the answers to most of these questions are “no”, you’re an employee.
A variety of Canadian national laws have established general restrictions that impart largely universal rights upon all "employees", as well as certain duties upon all "employers" with regard to the definition of who qualifies as an employee and who must be paid. Despite the national framework, the provincial standards construed through case law are largely controlling. Employees in Canada are protected by the employment standards set forth by each province, which then will typically be given precedence over in the national rubric unless the latter gives greater rights to workers. These provincial laws apply to all “employees” and “employers” within the province unless a clearly defined exemption or restriction in the national framework applies, or unless there is not a provincial framework in place. The provincial, versus the national legislation, makes it necessary to determine whether he or she fits into the definition of an “employee” under either of these legal structures; chances are, if a person is working in any way they are employees who need to be paid. While the extended definitions vary, a person is an employee in all provinces if they generally appear to be an employee ( they perform the type of work a person would typically be paid for, they are controlled to some extent by the employer, etc.) As defined through these statutes and stare decisis, individuals who fit these definititoins and tests are employees, and hence, are entitled to receive wages. This is almost always true regardless of any signed contracts or verbal agreements suggesting otherwise - agreements of this type are largely unenforceable except in the rarest of circumstances. Thus, unlike the U.S. where an intern can form a contract with the consideration being the value of the educative environs, in Canada, not so. Hence, whether the intern is willing to not be paid, or has signed an agreement acknowledging that he or she would not be paid, if they decide to sue for wages (or even if the employer is audited without the employees input), the existence of a written waiver of pay is not determinative of employers' liability. Much like the FSLA, these national and provincial employment laws were adopted with the goal of preventing the exploitation and abuse of workers who are in a vulnerable position relative to their employers. The Supreme Court of Canada has held that provincial employment laws should be construed and interpreted in a broad and generous manner because they provide minimum benefits and standards to protect workers as a general class. However, this framework can also backfire and put young Canadian professionals at a disadvantage in this growing global economy. In some circumstances - especially in competitive professional employment markets where experience is an intangibly invaluable asset - and their neighbors to the south (the U.S.) have the benefit of entering into these relationships. In professions such as law, medicine, business, and many others, internships are an invaluable tool and a stepping stone to permanent lucrative employment, that these "protections" may serve to deprive parties the benefit of. It is nearly always illegal in Canada to allow an individual to work in an internship or volunteer like capacity if they do so unpaid, even in ways that would traditionally be exempt from the FSLA (Fair Labor Standards Act) in the United States. Despite their nearness geographically to the U.S., there are a number of statutory and common laws that differ considerably between the two sovereign nations. Canadian courts and provincial authorities apply both the provincial and national employment standards and provisions. Together and/or independent of each other, these laws act in such a way that the test for who qualifies as an employee will inevitably end up encompassing nearly everyone working unpaid, except student interns working few hours. If an intern is not specifically exempted, they are entitled to and must be paid at least the National minimum wage (if the provincial wage is higher, it is the applicable minimum). Interns who do the same work of "employees" or who are subject to any amount of substantial control and direction by their employers, must be paid according to the test that various cases of the Canadian Supreme Court has engrained into Canadian common law. Even in situation where a would-be intern enters into an contractual agreement that he or she will not be paid does not mean that the employer is complying with their provincial employment standards. Any such clause in an oral or written contract is null and void if it contravenes the respective laws, The following link will bring you to a professional publication that examines the history and reasoning for these divergent provincial statutes, as well as the few existing exceptions, citing the most important relevant cases that have determined these issues nationally: http://www.gowlings.com/KnowledgeCentre/article.asp?pubID=3190
There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake.
Based on the contract language quoted in the question, and the facts stated there, it would seem that the employee owns the copyright on the software. It would seem that the software was not created &quot;during the course of employment.&quot; However, when the employee offers it to the employer free of charge, the employer may well want to own the copyright and any other related IP. The employer might want the employee to sign an agreement transferring the copyright. Or the employer might simply treat the software as belonging to the employer. Asserting and enforcing the copyright against the employer might be difficult. Insisting on even a token payment would help establish thst the copyright belongs to the employee, or gettign the employer to sign an acknowledgement of the ewmployee's copyright would have a similar, bnt even stronger effect.
It is mandatory for the employer to provide sufficient restrooms (“cabinets d'aisance”), as per article R4228-10. Other provisions regulate evacuation, ventilation, heating, disabled access, etc. There is no provision regarding when employees are permitted to use the restrooms. There can't be a single rule that works for every profession: some jobs don't let you leave your post whenever you like (e.g. machine operator, driver, guard, teacher, etc.). The most common dispute regarding restroom use is whether employees should be paid during that time. Some employers want to count restroom use as unpaid pause time. Strictly speaking, that's legal: an employee who is in a restroom is not at the employer's disposal, therefore this doesn't count as work time. However enforcing this is often logistically difficult and wildly unpopular, so in practice it's only done in places where employees must clock out to reach a restroom. I could only find one case with actual jurisprudence. In 1995, an industrial butchering company (Bigard) decided to limit restroom breaks to three fixed times a day. This was, as you might expect, unpopular; the employees went on strike, and eventually the labor court struck down this measure. That's a precedent, but it doesn't seem to have made its way to the appellate court. Your case is also slightly different in that the restrooms would only be inaccessible for an hour, which is shorter than in the Bigard case. So legally speaking, it isn't clear who will win. You'll have a better chance of success by banking on the unpopularity of the measure. Talk with your colleagues and your representatives and shop stewards. Point out that employees who are trying to hold it in are unlikely to be at the top of their productivity.