While some people will return to the office in the future, for others, working remotely may be here to stay. A June 2021 poll from the Business Development Bank of Canada found that more than half of employees surveyed wanted to work remotely as much or more than they did, and that 74 per cent of businesses would let their employees work remotely even after the pandemic.
As a result, some Canadians are working for companies not only without brick-and-mortar offices nearby, but without a footprint anywhere in Canada.
This means they’re also asking what employment laws apply when working in Canada for companies headquartered abroad. Here’s what employees need to know.
Employment contracts can’t eliminate your rights
While many employment agreements state that the laws of a particular country apply, companies can’t use contracts to get out of Canadian employment standards legislation. Even if your employer is based in the U.S., for example, the requirements of your local employment standards legislation still apply.
If you have employment law questions, look at the legislation in the province that you live and work in for the answers. As an employment lawyer, I see this as a good thing, since Canadian employment legislation is often friendlier to employees than similar laws in other countries.
Do I get severance if I am fired by a company that isn’t based in Canada?
An employee working in Canada for a foreign company is owed full severance — as much as 24 months’ pay — when they are fired or lose their job. This is referred to as a termination without cause.
If your employer offers you too little or no compensation, it is considered a wrongful dismissal, and an employment lawyer, like the team at Samfiru Tumarkin LLP, can work to secure what you’re owed.
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Do American “at will” employment laws apply to workers in Canada?
Many non-Canadian employers state that your employment relationship is “at will” and that you are not entitled to severance. This term is inconsistent with the minimum requirements of Canadian employment legislation, and generally unenforceable.
Employment laws in Canada are non-discretionary, which means your employer can’t attempt to circumvent or opt out of the legal responsibilities required by legislation.
A recent decision from the Supreme Court of Canada on our ongoing class action against Uber demonstrated the non-discretionary principle. The ruling upheld a previous Ontario Court of Appeal decision that said Uber’s clause requiring disputes to go through arbitration in the Netherlands was effectively contracting out of laws set by the Canadian government.
READ MORE: The 5 facts about severance pay you need to know, according to an employment lawyer
Do I get overtime pay while working for a non-Canadian employer?
People working for companies based outside Canada in non-managerial roles are entitled to overtime pay. This applies to salaried and hourly workers alike. The threshold for accessing overtime pay varies between provinces.
Can my employer make changes to my job?
Unless your written agreement with your employer permits them to change the nature of your employment, the company cannot impose significant changes to your job without your consent. This holds true whether the company in question is based in Canada or not. Significant changes could include a cut to your pay, a reduction in hours, or the curtailment of your responsibilities or job title.
READ MORE: The top 5 termination myths — and what you need to know about being fired from a job
If your employer does change your job against your will, you may be able to argue that they have essentially ended your employment. An employment lawyer, like the experienced ones at Samfiru Tumarkin LLP, can file a claim for constructive dismissal and get severance pay from your employer.
While you have the legal right to refuse significant changes to your employment, however, employees don’t have the right to refuse smaller, more reasonable changes.
READ MORE: 5 of the most common work situations where getting an employment lawyer can help
For example, if you have worked the same nine to five shift at your job for 15 years, but your employer is suddenly forcing you to work the graveyard shift, this could constitute a major change to your job that supports a claim for constructive dismissal.
On the other hand, if your employer has introduced a new software that you are not used to, and you would prefer not to use it, this would not be enough to justify a claim for constructive dismissal. That’s because new software is the type of change one would reasonably expect to see over time in the workplace.
Whether your employer is based in Canada or not, you should always speak to an employment lawyer before you make a decision about your workplace situation, to ensure that nothing is left on the table and your rights are preserved.
Fired by a company based outside of Canada and told you’re not owed severance pay? Not sure which employment laws apply to you?
Our firm’s Severance Pay Calculator can give you a quick understanding of the factors involved in calculating severance packages, and how much you might be entitled to while you search for new work.
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Gregory Sills is an employment lawyer at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.