Question

BLAW 2911: Commercial Law 1 TRU Open Learning Assignment 3 Scenario Mindy is an engineer who has recently been hired by a power generation facility located in Kelowna, BC. Mindy is told that she is being hired as an independent contractor and not an employee. She is made to sign a contract stating that she is an independent contractor but that her work activities are under the full control of her supervisors at the plant. Mindy is given an office, regular working hours, regular salary, and she is told to report to her supervisor for instructions. After two months on the job, Mindy is unhappy with her working conditions. She has noted several issues with her workplace, including hazardous work conditions, unpaid overtime, and harassment from her superiors. She begins to discuss the concept of unionization with her fellow workers, and her colleagues decide to begin to gather signatures for a unionization vote. On hearing about these activities, the owner of the plant tells Mindy that her hours have been cut back, and her office has been moved to the basement. He also tells her that if she continues her union activities, she will be fired. The owner reminds her that she is an independent contractor. Mindy continues her union organizing activities, and she is subsequently called into her supervisor’s office. Her supervisor explains that her contract is being terminated, and she must leave the premises immediately. Advise Mindy as to her legal position, taking care to analyze any legal issues that you can identify, and provide your opinion as to the likely outcome of any legal action that Mindy may be able to launch against the company.

Answer 1

Q: Advise Mindy as to her legal position, taking care to analyze any legal issues that you can identify, and provide your opinion as to the likely outcome of any legal action that Mindy may be able to launch against the company.

A: Mindy was definitely not treated as an independent contractor irrespective of her employment contract which she was made to sign by her employer. She was in effect a full time employee based on the facts that that her work activities are under the full control of her supervisors at the plant. Mindy is given an office, regular working hours, regular salary, and she is told to report to her supervisor for instructions. This clearly means that her employer has abused various labour laws and exploited Mindy.

Under various tests for an independent contractor including as contemplated by the Internal Revenue Service (IRS) for taxation purposes, controlling the work, making an employee work regular hours, providing regular salary, etc., are all factors that indicate an employee was being treated as a full time employee and not as an independent contractor even if their signed contract claimed the employee to be an independent contractor, and thus the employee Mindy would automatically be deemed to be a full time employee under the labour laws and she will entitled and eligible to seek the safeguards and protections of various labour laws of full time employees including the Fair Labour Standards Act (FLSA) of 1938, and the National Labour Relations Act (NLRA) of 1935.

Now, having understood that Mindy is a full time employee in effect and not an independent contractor, under the NLRA, Mindy would be entitled and eligible to seek membership with a labour union as per her choice and engage in union activities and collective bargaining freely, and the employer cannot interfere, obstruct, or take revenge in any form such as shifting her office to the basement, issuing her with a termination order, etc., and any such action would be illegal and Mindy can seek legal redressal from the jurisdiction court which will entitle her to seek reversal or vacting the termination order, all backwages in full, union membership, and compensation from the employer for the mental trauma and distress caused to her.