“I think I need to layoff some of my employees because of the negative affect COVID-19 is having on my business. How do layoffs work in non-unionized work environments?”
A “layoff” is a temporary pause in employment that does not exceed 13 weeks in a 20 consecutive week period. If a layoff is longer than this amount of time, then the employment relationship would most likely be determined to have been terminated.
An employer cannot layoff an employee unless:
- their employment contract expressly permits a layoff;
- layoffs are a well-known industry-wide practice; or
- the employee consents to the layoff.
If none of these circumstances exist, an employee cannot be laid off—their employment will have been terminated if the terms of their employment changes as a result of the COVID-19 pandemic.
If an employee does fit within one of the three circumstances described above, then a “week of layoff” is deemed to have occurred after an employee earns less than 50 percent of their weekly wages. An employee’s weekly wages can be calculated by averaging their previous 8 weeks’ of pay.
An employee can be “temporarily laid off” for up to 13 weeks in any period of 20 consecutive weeks. If an employee is laid off for a longer amount of time than this, their employment contract will likely be deemed to have been terminated from the first day of the layoff.
An employer does not have to provide notice to an employee who is going to be laid off unless the employer is terminating more than 50 employees at one location. If you are planning to layoff or terminate more than 50 employees, we advise that you contact Doak Shirreff Lawyers LLP for assistance to ensure that you meet the specific notice requirements.
An employer does not have to tell the employee when their expected return to work day is; however, the layoff cannot exceed 13 weeks within a 20 consecutive week period. If a layoff exceeds this amount of time, then the employment relationship is deemed to have been terminated, and the employer will likely be liable for providing that employee with reasonable notice from the first date of the layoff.
Please feel free to contact the Employment Law Group at Doak Shirreff Lawyers LLP for more information by contacting Nikita Gush at [email protected], or call 250-763-4323, or through our toll-free number at 1-800-661-4959. We can consult with you remotely as needed.