Canadian Employment Law Today

Temporary layoffs: Understanding the right Knowing the rules and the importance of a contractual provision is important for employers who want the option to lay off workers temporarily BY ALEXANDER KOWAL A common misconception in em- ployment law is an employer's right to temporarily lay off an employee. In order to understand how this misconception arises, we need to properly understand what a temporary layoff is. While the word layoff is often synonymous with termination, a temporary layoff differs from a permanent layoff or termination in that the employee remains an employee of the em - ployer, but the employer — often for financial, seasonal or production-related reasons — ad- vises an employee or group of employees not to report to work for a period of time. is period of time may be undefined or clearly defined, depending upon the employer's business requirements or the issue giving rise to the temporary layoff. When used properly, a temporary layoff can be an effective arrow in an employer's quiver, allowing for greater flexibility to meet operational demands. Below we will discuss the common mis - takes employers make (and the consequenc- es) when they conduct temporary layoffs. We will also outline strategies employers can utilize to mitigate and practically elimi- nate the risk associated with conducting a temporary layoff. ere are two primary problems associ- ated with temporary layoffs. First, employers often do not clearly un- derstand the rules associated with tempo- rary layoffs and may fail to give notice (if required) or recall the employee within the required time frame, thus triggering a ter- mination. While applicable provincial/federal mini- mum employment standards legislation may outline the rules associated with tem- porary layoffs — such as permissible length of a temporary layoff, notice requirements, or compensation obligations — the 'right' to lay off a particular employee is not granted by legislation. Without the right to lay off an employee, an employer is put in a position of potential liability when it decides to tem - porarily lay off one or more employees. As can be seen from the table to the right, legislation governing temporary layoffs var- 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: EMPLOYMENT STANDARDS LAYOFF IS a word often used to describe termination of employment, but for many employers who specialize in seasonal or fluctuating industries, the ability to temporarily lay off employees for a period of time and then bring them back when there's work available is essential to doing business. But those employers must follow certain rules and practices to ensure they are able to manage employees whose work comes and goes at different times of the year. BACKGROUND Province Notice Length of Layoff Alberta No. Up to 60 days or longer if the employer agrees to continue to pay the employee or make pension or group benefit contributions on the employee's behalf. In the unionized context, the layoff may last up to 12 months if the collective agreement provides for recall rights. British Columbia No. Up to 13 weeks in a 20 week rolling period. Manitoba No. Up to 8 weeks in a 16 week period or longer if the employer agrees to continue payments to the employee or make pen- sion or group benefit contributions. New Brunswick Yes and No. Up to 6 days without notice. If longer than 6 days, or is due to lack of work the employer could not foresee, employ- ers are required to provide at least 2 weeks notice to those employees employed for 6 months or more. Newfoundland and Labrador Yes. Length of written notice required varies between 1-6 weeks depending upon employee's service. Up to 13 weeks in a 20 week period. Northwest Territories Yes. Written notice with an expected re- call date is required. Up to 45 days in a 60 day period. e period may be ex- tended by an Employment Standards Officer. Nova Scotia No. Up to 6 days. Nunavut Yes. Written notice with an expected re- call date is required. Up to 45 days in a 60 day period. e period may be ex- tended by a Labour Standards Officer. Ontario No. Up to 13 weeks in a 20 week period or up to 35 weeks in a 52 week period where the employer continues to make benefit payments on behalf of the employee or the employee receives supplementary unemployment benefits. Prince Edward Island Yes. Written notice must be provided to those employees with 6 months or more of service. Up to 6 days. Quebec No. Up to 6 months. Saskatchewan Yes. Written notice must be provided to those employees with more than 13 weeks of service Up to 6 days. Yukon No. Up to 13 weeks in a 20 week period. e period may be extended by the Director of Employment Standards. Federal No, if less than 3 months. If longer than 3 months, but less than 6 months, written notice and a recall date is required. Up to 3 months or up to 12 months if mandatory under a Collective Agreement. e 3 month time period may be extended if written notice is given and the recall date does not exceed 6 months after the layoff commenced. Benefits or pension contributions are also required where the layoff is longer than 3 months. In the unionized context, a layoff can be extended up to 12 months if the employee retains recall rights.

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