Distinguishing Employees and Independent Contractors for the Purposes of Employment Standards Legislation

Employment standards legislation implicitly acknowledges that the employer and employee relationship is often an unbalanced one in which the individual worker does not always have sufficient bargaining power to negotiate conditions of employment that are not exploitative. This thesis examines the lack of access to employment standards protections for workers who share the same vulnerabilities as employees but who are denied access to these standards because of their status as independent contractors at common law. The author examines evolving workplace practices and the validity of the assumptions about such matters as control and risk that underlie the common law tests. The present practice of superimposing the common law into statutory definitions is examined in light of established principles of statutory interpretation. The purpose of employment standards legislation and role of administrators enforcing employment standards legislation are considered with suggestions for improving decision-making in cases involving ‘independent contractors’.