Temporary Layoff Lawyers in Vancouver, BC

If your employer wants to lay you off for a period or reduce your hours, what are your rights as an employee in British Columbia?

How long can you be laid off, and what notice must your employer provide? What rules must be followed for recalls?

It’s important to understand your rights and responsibilities with layoffs in the workplace and those of your employer.

Our temporary layoff lawyers can provide legal advice and representation in disputes over layoffs and will push for the maximum possible compensation under BC’s employment laws.

What is a temporary layoff?

Sometimes, employers in B.C. face a business downturn, need to restructure or experience a period of uncertainty and disruption. Consequently, they may decide to temporarily reduce their workforce.

Temporary layoffs, as outlined in the Employment Standards Act, are a way for an employer to do this legally. They are triggered when employees are given less work or no work and are expected to return to a regular work schedule.

The employee may be asked to take time off work during the disruption (while still collecting employment insurance and other benefits) and is recalled when the situation eases.

No severance pay or compensation is due for a temporary layoff, and there is no minimum notice period required of employers who want to lay off temporarily employees.

A layoff is a week in which an employee is paid less than 50 percent of their standard weekly wage, averaged over the previous eight weeks.

Therefore, if your earnings dip below 50 percent of their regular rate, you are then considered “laid off”.

How long can a temporary layoff last?

The Employment Standards Act states that a temporary layoff can last up to 13 weeks in a consecutive 20-week period, starting from the first day of the layoff.

This is not a hard and fast rule. If the employer and employees apply for the variance through the Employment Standards Branch, the period can extend beyond 13 weeks. However, to be successful, the employer will need to prove that at least 51 percent of affected employees agree to the extension. Otherwise, extending the layoff beyond 13 weeks would be unlawful.

When is a temporary layoff permitted in B.C.?

Under the Employment Standards Act and common law, an employee in B.C. can be temporarily laid off if:

• The temporary layoff is agreed upon between the employer and the employee.
• A provision in the employment contract expressly permits it.
• A temporary layoff with your employer has occurred in the past.
• The industry commonly uses temporary layoffs (e.g., logging, construction, fruit picking, etc.).

Can a temporary layoff become a termination?

If a temporary layoff extends beyond 13 weeks and no application for a variance has been approved, the employment relationship would be ended, and it would automatically be considered a termination.

Under the Employment Standards Act, an employer must then pay severance according to the employment contract or the guidelines established under the Act.

A termination (being “fired”) is when an employer ends the employment relationship permanently. You can be terminated lawfully in one of two ways in B.C.:

1. Termination without cause: you are dismissed for no reason and are provided with a severance package or reasonable notice.
2. Termination for cause: You committed a serious act of misconduct that made your employment situation untenable, and you are not entitled to severance.

Remember, employers in B.C. can lay off employees whenever they want as long as a notice of termination is provided — or severance pay in lieu of notice.

How much severance pay are you entitled to in BC?

The Employment Standards Act provides minimum guidelines for employers to follow when providing severance to terminated employees.

However, employees are often entitled to more (up to 24 months’ pay) based on:

• Age
• Length of service
• Position/role
• Benefits/commission/bonuses
• How quickly they can find a new job

If your employment contract includes a termination clause, this may override other provisions for severance.

Note that failure to pay the correct severance could amount to wrongful dismissal by an employer — and you may be entitled to compensation.

What happens at the end of a layoff period?

If you are laid off and the period extends beyond 13 weeks without an extension approved, your employment is terminated, and you will be due a severance package.

Alternatively, your employer could recall you at the end of the layoff period. Normally, you should receive some advance warning about this, though there is no legal notice period that an employer must abide by.

What if your employer makes major changes to your role after the recall?

After you are recalled to your job following a temporary layoff, your employer must not change your duties, pay, schedule or time off significantly.

The original employment arrangement should be followed, or an employee may be able to file a claim for constructive dismissal. This is a type of termination without cause where the employer makes an employee’s position untenable and essentially forces him/her to quit.

Employees in this situation may be able to claim full severance pay from their ex-employers (up to 24 months).

Can your employer lay you off more than once?

If you have previously been laid off, and you accepted it or did nothing, a precedent may have been set. Your employer may be in a position to be able to lay you off again legally.

What should you do if you’ve been temporarily laid off?

If you are instructed by an employer that you’re being temporarily laid off, and you take no action, it is viewed as tacit acceptance of the layoff.

Before accepting the layoff, consider whether it is lawful. If you feel that your employer’s actions are illegal, you can discuss your situation with one of our temporary layoff lawyers.

As mentioned, some laid-off employees have strong constructive dismissal cases. Again, speak to one of the qualified Taylor Janis LLP employment lawyers in B.C. about this.

We can advise you of your legal rights and options during a confidential telephone or video consultation.

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