Most employees who have been laid off or put on Infectious Disease Emergency Leave (“IDEL”) are under the misunderstanding that the employer has the right to do this.  However, unless you have a valid “temporary layoff” term in your employment agreement, an employer may not have a right to lay you off. If that is the case, a temporary layoff could give you the same rights as if you had been fired from your employment, which means an entitlement to termination and severance pay.

Many employees also decide, at least to start, not to push the envelope: You have a job, and if you wait long enough, you believe you will be taken off layoff. Perhaps you have even made it clear that you would assist your employer by not pushing things so long as you get called back to work. But, if you’ve been off work since the start of the pandemic, that is a very long time to be off work without certainty.

Here are a few things to consider as the economy continues to reopen.

#1: Continued uncertainty can lead to loss of rights

“I’m pretty sure I’m not going to be called back to work, but I am hoping that maybe it will work out.”

If your contract has no temporary layoff clause, and you have been off work for at least 12 weeks, or up to 35 weeks if you continue to get benefits, you would by law be considered to be terminated. You can stay, and risk being seen as accepting the continued layoff, or accept the termination and claim your severance pay. If you suspect your company is in trouble and it files for bankruptcy, your rights will essentially disappear.

#2: CERB won’t affect your severance pay

“I’ve finally been told that I’m not being called back, and they are going to let me go. They  made me an offer and they are deducting the CERB that I received while laid off”.

First, when you are terminated after a layoff, or considered to be terminated, your termination and severance pay goes back to your first day of layoff. Employers can deduct EI and pay back the government for those payments, but they are not permitted to deduct your CERB payments.

Second, the vast majority of employees accept the very first offer from the employer, without investigating whether the offer is fair and meets the requirements of the law. It is rare that the first offer is the final offer, or one that meets the full requirements of the law. Employees should seek qualified employment lawyers to assess that offer. Failure to do so could mean you are giving up a significant improvement in your position, which could be the difference between short term financial security and immediate financial distress.

Imagine for a moment you worked for a company for just over 20 years, they laid you off, and then terminated you. You earn, say $60,000 a year. They offer you only the minimum required by employment standards legislation, which would be about 28 weeks (6.5 months) or $32,000. Depending on your contract, you could actually be owed up to about two years of pay or $120,000.  A significant difference! It is unlikely you will ever work for another company again for that length of time, so you want to be careful about walking away too soon. Contact a qualified lawyer with employment law expertise.

#3: Beware of the real cost of “contingency fee” offers

“A lawyer told me that they could do my case on a “contingency fee” basis, and that I did not pay have to pay anything.”

Contingency fee arrangements work in your favour only if negotiations fail and you have to go to trial.  Be aware that the vast majority of employment law cases will settle without litigation, with the lawyer putting anywhere between a few hours of work to about 10 hours to negotiate a settlement.  Contingency fee agreements mean that you will likely give up a third to a half of your severance package to your lawyer, even if they put in just a few hours work.  Carefully consider your options, and know that as the legal consumer, you can explore retainer options such as hourly rates, a flat rate arrangement, or a modified contingency fee agreement, amongst others.

Ensure  you have all of the correct information before making a final decision. Working with an experienced employment lawyer who is focused on your best interest will help get you the best possible outcome.

#laidoff #COVID19 #constructivedismissal #employmentlawyerontario

By Weinan Wang, Senior Associate Hum Law

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