In Quebec, in order to determine if you are dealing with an employee or an independent contractor, it is important to assess the degree of subordination between the parties.

A worker is considered an independent contractor when there is no degree of subordination between them and their client. Additionally, the independent contractor will have full control over the way the work will be executed. For more information on independent contractors, please visit our independent contractor page.

In comparison, a worker is considered an employee if, under a written or oral contract, they undertake to conduct work for a certain compensation under the orders and control of their employer.

Ultimately, there are a few criteria that can be used to establish if you are dealing with an employee or independent contractor:

1. Specific result of the work
2. Financial or economic criterion
3. Subordination in execution of work
4. Ownership of tools
5. Integration of tasks
6. Control over performance of work

No, we do not recommend an oral employment agreement. The main problem with oral employment agreements is that they are difficult to prove. In the event of a dispute during or after termination of the employment, the court will have to hear evidence from both parties regarding the terms of the employment, among many other elements. Proving these elements will be an arduous task if no written contract exists between the parties establishing the terms of the employment.

For more information on why written employment agreements are essential for a business that is looking to hire an employment, please read on blog post on the topic, here.

The types of clauses that you will normally find in an employment agreement will cover, namely:

1. Job Position: The agreement will clearly indicate the title of the position along with the tasks and responsibilities of the employee.
2. Term of employment: The employment agreement should clearly indicate the length of the employment. Is it a temporary employment of one year, indefinite, until termination?
3. Compensation: The employment contract should state how the employee will be compensated. Will they receive a salary, commission or be paid per hour? The agreement should also state when the employee can expect to be paid.
4. Benefits: The employment agreement should establish the benefit package and what is included in that package. It should also cover elements related to holidays, vacations and stock options, if any.
5. Non-Disclosure: The employment agreement should prohibit the employee from sharing business trade secrets and confidential proprietary information to any third-party without the written consent of the employer.
6. Non-Solicitation: The employment agreement should prohibit the employee from solicit employees or client of the employee during or after the employment is terminated.
7. Non-Competition: In some case, the employment contract should state that the employee is prohibited from working for a competitor that is within a certain radius of the employer.
8. Disputes: The agreement should establish how disputes will be resolved (ex. arbitration, mediation, court…etc.)
9. Termination: The employment contract should establish the possible grounds of termination.

Service Agreements are used to hire independent contractors or service providers, not employees. Additionally, a service contract will be limited to a specific project for a short time period. Whereas, an employment agreement is used to hire employees.

The term notice in an employment contract refers to a time the employer has to warn the employee of the termination of employment. In Quebec, this time period is established based on the amount of time the employee has been working for the employer.

A non-solicitation clause prevents the employee from soliciting other employees of the employer or clients of the employee from changing companies or leaving the employer. This clause is mostly used to prevent the employee from taking the clients of the employer to another company after termination of the employment.

In comparison, a non-competition clause is used to prevent the employee from unfairly competing with the employer after the employment is terminated. In this case, the employee will be prohibited from working in the same industry within a certain radius of the employer for a certain period of time.

It is important to note however that the courts can struck down a non-competition or non-solicitation clause if it is too broad, abusive, causes hardship to the employee or is unreasonable in terms of time and area.