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What is the legal status of my worker?

Employers have various legal and contractual obligations towards their employees and contractors.

How can we establish the status of the worker and, as a result, the employer's obligations arising from this qualification?

Is the worker an employee or a provider of services?

Section 2085 of the Civil Code of Québec stipulates that the employment contract is the one by which a person, the employee, undertakes, for a limited time and for payment, to work under the direction or control of another person, the employer.

The essential elements an employment contract are remuneration, work performance and control of the employer on the employee. The latter performs his work under the subordination of the employer.

Article 2098 of the Civil Code of Québec stipulates that the contract for services is that by which a person, service provider or contractor, commits himself to another person, the client, to carry out a physical or intellectual work or to provide him a service for a price, which the customer is obligated to pay to him.

The essential elements of the contract for services are therefore the provision of services and remuneration. The element that distinguishes the employment contract from the contract for services is therefore the subordination of the worker. Indeed, the provider of services is not a subordinate to the client, unlike the worker. He therefore has the possibility to perform its services in the manner he deems appropriate.

It is crucial to determine the qualification of the worker, given the legal and fiscal impacts that results from it. For example, if an employer qualifies a worker as a provider of services while he is actually an employee, income agencies in Canada and Quebec may claim deductions and tax contributions at source for many years after employment.

If you have any questions, please consult a lawyer.

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