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The Question

I work as a lab technician for a research organization. As author and inventor, I have made contributions to publications and inventions. But compared to the engineers and scientists engaged in the research, I’m paid much less and don’t have the opportunity for performance-based promotions. Can research organizations use technicians like me to carry out the duties of engineers and scientists for better performance at a lower cost? Do the technicians engaged in research like myself have any recourse for compensation?

The First Answer

Shibil Siddiqi, employment and human rights lawyer, Progressive Barristers, Toronto

Beyond regulating things like gender pay equity, minimum wage, overtime rates and holiday pay, Ontario’s Employment Standards Act and its federal counterpart, the Canada Labour Code, say little about employee compensation. The issues you raise would typically be governed by the terms of your employment agreement.

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Unless stipulated by your employment agreement, there is no legal obligation for your employer to provide salary increases or promotions regardless of the work performed. As unfair as this sounds, it is common practice in many industries, often on the grounds of base qualifications rather than actual value-added e.g. nurses and paralegals typically earn less than doctors and lawyers for performing some of the same duties. This is permitted provided pay equity or human rights laws are not breached.

You can renegotiate your employment agreement with your employer by respectfully broaching the subject with your manager. Reasonable employers may be open to a salary renegotiation to retain valuable employees regardless of qualifications or job titles.

As an author and inventor, your question also raises issues of workplace intellectual property rights. Under the Copyright Act, your employer is the first owner of the copyright to any original work created in the course of employment, though you may retain moral rights to be associated with the work. Under the Patent Act, the employee is presumed to own an invention, though there can be exceptions. These presumptions can be displaced by the language of the employment agreement, which may assign moral and intellectual property rights to the employer. This is a complex and niche area of employment law that would be worth getting expert legal advice on.

The Second Answer

Amy Frankel, lawyer, Forte Law Corporation, Surrey, B.C.

As employment lawyers we often get questions from employees who feel they are underpaid. The bottom line is there is very little recourse for an employee who feels they are not paid enough for their work. As long as minimum wage standards are met, and the employee is paid based on the hours of work and overtime, the employee’s compensation is what the employee and the company agreed upon in the employment contract. The employee’s options are to negotiate for a wage increase going forward or look for better paying work elsewhere.

If your work may result in publications or inventions and your employer will not consider a wage increase, you can try to negotiate performance-based pay such as a bonus based on your contributions, or a percentage of royalties if the work is later licensed. Most research organizations include clauses in their employment contracts that give them the rights to all intellectual property an employee creates. Therefore, you will likely find that the best time to request this is during your initial employment contract negotiations.

Companies are generally allowed to organize and direct the work to be done and determine who will perform the work. There are some limitations where professional licencing is required to perform certain responsibilities and duties. If nonlicensed, lower paid workers are performing work that only a licenced professional can do, it is not a compensation issue; those lower paid workers cannot do the work at all.

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Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.

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