What Are Your Rights if You’ve Been Laid Off in BC?

If you’ve been laid off in BC, it’s important to know your rights.

In most cases, when we refer to a “lay-off”, we mean a temporary lay-off. Many people in BC have experienced this during the recent pandemic.

During a temporary lay-off, an employer suspends work duties and wages for a while but does not end the employment relationship with the employee.

Lawful temporary lay-offs require no severance pay or compensation to be paid to the employee. However, some BC employers do not follow the law correctly and use lay-offs in place of dismissal to avoid paying severance packages.

There are limits to what an employer can do with respect to temporary layoffs. Understanding these limits can protect you and provide opportunities for compensation if your rights are abused.

Can an employer temporarily lay-off an employee in BC?

Employees covered by employment standards law in BC can only be laid off only under certain circumstances.

Besides a pandemic, other legitimate reasons for laying employees off temporarily include restructuring, seasonal work stoppages or a recession.

Your employer cannot simply lay you off as and when they feel like it. You remain an employee of the company and have certain rights.

Even if the lay-off is for a legitimate reason, unless your employer follows the guidelines, it may be unlawful and you may be able to claim severance.

When are temporary lay-offs allowed in BC?

Under BC’s Employment Standards Act, an employee can be laid off temporarily if he or she is made aware of and consents to it—and one of the following applies:

• The lay-off is normal and expected in the industry (e.g., in logging or construction work, it is understood that the work may be temporary)
• The pay-off is expressly permitted as part of an employment contract/agreement
• A temporary layoff has been previously agreed upon with your employer

If the employee does not consent to the lay-off, it should be considered a termination of employment and a severance package in lieu of notice must be provided by the employer.

During a lawful lay-off, employers and employees should remain in contact and ensure that contact information is up-to-date and a return-to-work date arranged.

When are you considered “laid-off” in BC?

An employee is considered laid off in BC if they earn less than 50 percent of their weekly wages at the regular rate—averaged over the previous eight weeks of employment.

To be considered a lay-off, the arrangement must be temporary. The employee must be temporarily asked to do less work or no work, with the idea that the employee will return to a regular work schedule shortly.

During the period of the lay-off, the employee’s pay may be stopped but benefits, vacation, leave and other entitlements should remain intact as they are protected.

The expectation is that once the situation improves, the employee will be called back to work. If not, it is considered a termination of employment and a severance package must be provided under BC’s employment laws.

What is the maximum length of lay-offs in BC?

Under BC employment law, an employer can temporarily lay off an employee for up to 13 weeks in a consecutive 20-week period starting from the first day of the lay-off.

Employers must keep this in mind as if the temporary lay-off extends beyond the 13 weeks, it will be treated as a termination without cause and, under the Employment Standards Act in BC, adequate severance must be paid to the employee.

However, the lay-off can be extended beyond 13 weeks by applying for a “variance” with the Employment Standards Branch, provided both the employer and 51 percent or more of the employees agree with the application.

What are the rules for recalling employees to work after a temporary lay-off?

Employers must provide reasonable notice for employees who will be returning to work after a temporary lay-off so that they can make adequate plans.

This is usually done by contacting employees with a specific return date as soon as possible after the lay-off period has commenced.

Employers should bear in mind that those laid off for longer periods may need more notice and seek confirmation that the notice to return to work has been received by employees (email, text message, registered mail, etc.)

Remember, if an employee is not recalled within 13 weeks (unless there is a variance), the employment is automatically considered terminated and a full severance package must be paid.

What should do if you don’t consent to a temporary lay-off in BC?

If you do nothing when confronted with the prospect of a temporary lay-off, it is considered tacit acceptance of the lay-off.

So, if you do not consent, it is important to inform your employer in writing, prove that they have received it, and keep a copy for your records.

Then, discuss with an employment lawyer whether to challenge the layoff by making an employment standards complaint or taking legal action.

What is an employment standards complaint in BC?

The majority of employees in BC are covered under the Employment Standards Act. This permits you to challenge a temporary lay-off by taking your workplace complaint to the Employment Standards Tribunal. This tribunal handles most types of workplace disputes.

Certain employees, like independent contractors, certain other professionals (doctors, dentists, lawyers, etc.), unionized employees and those employed by banks, airlines, etc., are not covered by the Act and must use federal laws to make a complaint.

Before deciding how to proceed, it’s best to check with an employment lawyer as an employer is unlikely to provide the best advice on making a complaint against them!

You have six months from your last day in a job to make a complaint with the employment standards tribunal.

Generally speaking, you should try to act quickly after taking legal advice on matters involving employment disputes. If legal action is necessary, an employment lawyer can advise you on the recommended steps.

The employment lawyers at Taylor Janis LLP have helped many employees in BC challenge their lay-offs and receive the severance package they are due.

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