Negotiating Employment Contracts
Independent Contractors vs. EmployeesWhether a worker is an employee or an independent contractor depends entirely on the facts of each case. Think of it as a continuum: at one end is the true employee; at the other end is the true independent contractor. An analysis of the relevant factors determines where a worker falls on that continuum. If you are closer to the employee end of the spectrum, you will be entitled to reasonable notice. If you fall towards the independent contractor end, you may still be entitled to some notice. Some of the factors a court will consider in determining a worker’s status include:
- The duration / permanency of the relationship;
- The degree of reliance;
- The degree of exclusivity;
- The degree of control exercised by your employer;
- Provision of / ownership of tools;
- Whether you have a chance of profit or a risk of loss in the business
Non-Competition & Non-solicitation AgreementsA restrictive covenant is a promise not to do something. The most common types of restrictive covenants in an employment context are non-competition and non-solicitation agreements. Such agreements can prohibit or place parameters on a departing employee’s post-employment activities. Such agreements are applicable whether you resigned OR whether you were terminated. In determining whether a restrictive covenant agreement is enforceable, our courts assess a number of factors, such as:
- Does the employer have a legitimate business interest to protect?
- Is the restriction reasonable in its duration (number of years)?
- Is the agreement reasonable in its geographical restriction?
- Is the nature of the restriction (what it prevents you from doing) reasonable or is it overly broad?
- Are the terms of the agreement clear or is there ambiguity?
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