Quite often employers make one-sided decisions that can have serious consequences for employees — and I’ve seen lots of these decisions as an employment lawyer. None, however, are more problematic than the temporary layoff.
An employer may not always use the term temporary layoff, have a formal discussion with an employee about it or give notice that the layoff is going to happen. But legally, it is still a layoff.
Here are five of the most common questions I’ve heard from non-unionized employees in B.C. when their employment is put on hold.
What exactly is a temporary layoff?
A temporary layoff occurs when an employer stops providing an employee with work or pay for an indefinite period. It can be thought of as an unpaid suspension of work.
The layoff could be prompted by an employer finding itself financially unable to continue having the worker on the payroll. Regardless of why it happens, if an employee is not working and not given a date when they will be brought back, that employee has been temporarily laid off.
READ MORE: 5 times you may have been let go from your job without knowing it — and what you can do
Do I have to accept a temporary layoff?
Unless there is a term in your contract that allows your employer to put you on a layoff without your permission, it can be considered illegal and you do not have to accept it — even if the layoff is the result of economic hardship or a pandemic.
Both parties must mutually agree to the work stoppage. If an employee disagrees with the decision, they may be able to make a claim for constructive dismissal and leave their job with their full severance pay.
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If an employee is placed on a layoff, they should let their employer know as soon as possible that they do not consent to it. If you take too long to do so, you may lose your right to take legal action to respond to the company’s decision, since doing nothing could be seen as accepting it.
The exceptions to this are workplaces and industries where temporary layoffs occur seasonally, annually or regularly. If the layoff is a custom or to be expected, then the employer may be able to do it without the employee’s permission.
Before you assume anything, contact an employment lawyer, like the ones at Samfiru Tumarkin LLP, to find out what your options are and what rules may apply to your situation.
READ MORE: 5 of the most common work situations where getting an employment lawyer can help
Is there a time limit on temporary layoffs in B.C.?
B.C.’s Employment Standards Act limits temporary layoffs to 13 weeks in a 20-week period. This means that after approximately three months of being laid off, an employer can lay off an employee again about three months later.
These circumstances, however, are rare, and in most cases, an employee does not have to accept a layoff at all, for any length of time.
If an employee accepts an initial layoff, it does not mean they are obligated to accept a second layoff or an extension.
Can my employer change my hours, pay or duties when I return from a layoff?
An employee can expect to return to the same job and working conditions they had before their employment was paused. Just as is the case when an employee is working, an employer can make minor changes to an employee’s job without their permission, but would still require the employee’s approval for major changes.
Having to lay off an employee temporarily is not a justification to significantly alter a worker’s job or make changes that could be considered a demotion. An employee in this circumstance may be entitled to severance, which can be as much as 24 months’ pay.
Our firm’s Pocket Employment Lawyer tool can tell someone if their employer can change their employment, and how much compensation they may be entitled to receive.
What can I do if I am not called back to work?
Your boss should notify you that you are not being called back to the workplace, ideally before the expiration of the layoff, or at the latest, on the day the allowable layoff period comes to an end.
READ MORE: Return company property, call a lawyer: 5 things to do right away if you’re fired
I have seen cases where the employer laid off an employee for the maximum allowable time, then failed to contact the employee and even evaded the employee’s attempts to reach out to them for several months. In situations like this, the employer may have to pay the employee additional compensation beyond severance because of how the employee was treated.
You should contact the employment lawyers at Samfiru Tumarkin LLP if you get the sense that you will not be recalled from a layoff. We may be able to file a claim for wrongful dismissal on your behalf and secure proper compensation.
Placed on a temporary layoff? Tired of waiting to be called back to 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.
Osaro Obaseki is an employment lawyer and associate 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.