Jessica Forman - Forte Law

Layoff in the News

Layoffs in the News – What are the Rules?

With recession in the headlines and daily reports of companies in the tech sector laying off large numbers of employees, many people are wondering what the difference is between a layoff and a termination and what their rights are in either circumstance. Here are some frequently asked questions, answered for non-unionized employees in British Columbia.

My employer told me I have been laid off. What does that mean?

A layoff in most cases is the same thing as being terminated or fired. Once an employer is no longer providing work to be done or paying an employee, employment has ended. Since layoffs are driven by the financial circumstances or strategic decisions of the employer, and not employee misconduct or poor performance, notice or severance pay is owed.

Employers can only lay off an employee without effectively terminating their employment if:

The employment contract expressly allows for temporary layoffs;
Layoffs are a well-known and longstanding industry-wide practice (like in logging where work cannot be performed at certain times of the year); or
The employee agrees to the layoff.

Even if one of these conditions apply, the layoff must be short-term and temporary under the BC Employment Standards Act. Unless one of these conditions exists, then a layoff is the same as a termination of employment.

If I am laid off because my company is having financial trouble, do I still get severance pay?

Yes, in most cases you are still entitled to reasonable advance notice of termination or severance pay. The employer’s financial situation generally does not impact your entitlement to severance pay. Unless there is a bankruptcy or other similar legal proceeding underway, the financial situation of the employer does not impact the requirement to pay employees severance or provide notice.

What if I am part of a large group of employees being laid off?

If 50 or more employees are terminated from the same location within a 2-month period, as a minimum standard, the employer is required to give specific notice, or pay in lieu of notice as set out by the BC Employment Standards Act. The amount of notice depends on how many employees are being laid off but can range from 8 weeks to 16 weeks.

Over and above the Employment Standards Act minimum requirements, employees are often entitled to common law severance. In determining how much severance pay is required, judges will consider availability of alternative employment. In an industry downtown or recession, this may mean that more severance is owed than in a job seekers market.

Do I need to hire a lawyer if I am laid off?

An employment lawyer can assess your severance pay entitlements taking into consideration your contract, legislation, and legal precedents, so you know whether what you have been offered is fair and reasonable. If the offer is not reasonable, our lawyers will build a gameplan with you to negotiate for something fair. In most cases this can be done in a single meeting, for a flat fee. We don’t take a percentage of your severance pay. Contact us at [email protected] or 604-535-7063 for more information.

Workplace Investigations

Why Hire an External Workplace Investigator?

As an employer, it is stressful when you receive a complaint from a worker about breach of policy. You will have a number of considerations to weigh when figuring out how to proceed. In addition to deciding whether you need to take immediate steps to separate employees, or make changes in the workplace, one thing to consider is whether to hire an external investigator or handle the complaint internally. There are many situations where employers can and should handle their investigations internally. However, there are other times when it is prudent to seek out an external investigator. Here are a few factors you should consider when deciding who is best to investigate:

1. Who is involved?

It is important to consider who the complainant, respondent and potential witnesses will be and whether anyone within your organization can be unbiased and neutral. For example, if a party is a senior manager or a member of the HR department, it may be difficult for someone in the HR department to conduct a fair investigation and question their colleagues or superiors. Remember, it is key that the parties involved in any investigation feel like the process is neutral and fair to everyone involved.

2. How complicated are the issues?

Some complaints are very straightforward and involve issues that can be easily resolved by reviewing documents or speaking to a few witnesses. Other complaints involve multiple allegations that are nuanced and complicated. Many times, having a trauma-informed investigator who is trained to understand the impact that past trauma has on individuals and how to ask questions in a sensitive way is the only path to success. An inadequate internal investigation can create more problems than it solves.

3. Do you have time?

Conducting a workplace investigation takes time. If you decide to conduct it internally, that is time that is taken away from your important organizational priorities and goals. Having an external investigator take over will allow you to focus on what you need to do in order to keep your organization running.

4. How much will it cost?

Hiring an external investigator is costly, but it can also save resources and money internally by allowing a neural party to efficiently deal with the complaint. A good external investigator should be prepared to provide you with an estimate up front and be flexible in their approach. Every complaint is different and investigators will take those differences into account in determining their process. It is important to ask external investigators if they are comfortable finding other ways to resolve complaints outside of a report, like mediation or discussions. Sometimes, these results are much less costly then running a full investigation and paying for a report that is not helpful.

5. Should the investigation be privileged?

Confidentiality is a big consideration for most organizations in conducting investigations. By hiring an external investigator who is also a lawyer means that the investigation and the report can be covered by solicitor-client privilege and ensure confidentiality.

There are pros and cons to investigating internally vs hiring an external workplace investigator. If you are not sure which approach is right, call or email us and we are happy to discuss both options. To learn more about our approach to investigations, you can check out our investigations practice here, or contact us.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Legal Advice, Wrongful Dismissal

So you have been served with a wrongful dismissal lawsuit, what’s next?

We are regularly contacted by businesses who have been served with a wrongful dismissal lawsuit by a former employee. This can be very stressful and for many, the first time they have been sued. Here are answers to some of the most frequently asked questions that we have received from businesses who have been sued by former employees.

Do I need a lawyer?

Probably. Hiring a lawyer to help you defend a lawsuit is a sensible idea. Lawyers can help explain your rights and obligations, assist in preparing documents and advise you on court rules and procedures, which can be complicated.

Some employers prefer to defend themselves and there are a number of helpful online resources from the Provincial Court (https://www2.gov.bc.ca/gov/content/justice/courthouse-services/small-claims/how-to-guides) and Supreme Court (https://www.bccourts.ca/supreme_court/self-represented_litigants/) which you should access.

Is this lawsuit public?

Yes. Once a Notice of Civil Claim is filed in either the Provincial or Supreme Court it is accessible to the public. Any documents that are filed with the Court, like a Defendant’s Response or Affidavits are also accessible to the public. In rare cases, a party can request that documents filed with the Court be “sealed” or labelled confidential which means that they are not accessible by the public.

How much will it cost?

It is always difficult to estimate how much defending a lawsuit will cost. There are filing fees that are set by the Court. If you hire a lawyer, then you will also have to pay legal fees for their time in assisting you. Most lawyers charge an hourly rate and those rates can vary. How complicated the case is will also have an impact on the overall cost.

Bottom line, litigation can be costly, so make sure to ask your lawyer from the outset about their fees and for them to give you a range of the expected cost. You should also ask your lawyer for regular updates about their fees at each step of litigation.

When will I have to pay?

Your lawyer should provide you with a retainer agreement or an engagement letter which sets out the terms of the retainer, including when payment is due. You may be required to provide an initial retainer when you first hire the lawyer. Most lawyers require you to pay monthly for any time spent working on your file.

For more information about lawyer’s fees and retainers, see the Law Society of B.C.s website: https://www.lawsociety.bc.ca/working-with-lawyers/lawyers-fees/

You may also end up having to pay your former employee damages, often in the form of more severance pay. Most cases settle before a trial, so payment happens then, or if you may have to pay the employee after a trial and award, which could take 12 months or more.

What happens if I don’t defend it?

If you “do nothing” and decide not to defend the lawsuit, the Plaintiff (the person who sued you) can go to Court and ask for a Default Judgement against you. If the Plaintiff is successful, then the Court issues an Order stating that the Plaintiff “wins” their lawsuit. The Plaintiff can then take steps to enforce that Default Judgment against you, which can include garnishing wages, freezing bank accounts or putting liens on property you own.

There are a number of online resources available to help you navigate a lawsuit, including pro bono legal services. Here is a good summary of some of those resources: https://www.lawsociety.bc.ca/working-with-lawyers/resources-on-the-justice-system/

Wherever you decide to go, it is important to consult a lawyer to make sure you understand your rights and obligations.

Covid-19, Employer Policies, Remote Work

Time to Work at Home (again) – Do you have a Policy for that?

With rising Covid numbers, many workers who had returned to the office are now turning around to head back to working from home. The November 7^th B.C. Provincial Health Order states that employers should “encourage” their workers to work from home, if feasible. The purpose of the Order is to reduce the risk of transmission of Covid-19 in workplaces, but it is important to remember that employers are still responsible for ensuring their employee’s safety while working remotely.

WorkSafe BC Requirements

WorkSafe BC requires all employers to have a working from home health and safety policy in place, and provides guidelines for how to work from home safely. A Work from Home policy should include the following:

Employees should assess their workspaces and report any potential hazards to their manager
An evacuation plan for the worker’s home and how to contact them in case of an emergency
Safe work practices and how to report any work-related injuries
Communication plans for checking in on workers working alone or in insolation
Ergonomic considerations

Other Considerations

Beyond safety considerations, there are other issues that need to be addressed for remote workers. Will their hours of work be the same or different? What protections are in place for company property and electronic information? What equipment and supplies will be provided by the company? How will employees stay connected with other employees in the workplace?

Does your company have a Work from Home policy? Whether you are an employer or a worker, if working from home is in the mix, you should know the answer to this question. While we all hope the restrictions in the Order will not continue after November 23^rd, it is now clear that we need to be ready for ongoing remote work. If your company does not have a policy and safety measures in place for remote work, you can reach out to WorkSafe BC or speak to an HR professional or employment lawyer for help.

Workplace Investigations

5 Tips for Successful Workplace Investigations

5 Tips for Successful Workplace Investigations

Workplace investigations happen in all types of workplaces. They can be very effective in dealing with conflict, but they can also get off track. With the recent news that the Governor General’s office has brought in a workplace investigator to look into claims of harassment in the workplace, here are some key strategic tips for successful workplace investigations.

Determine the scope and purpose of the investigation. Ensure that all parties are clear on the issues and allegations as well as the scope of the investigation, so there are no surprises. It is very common for new issues to come up during an investigation, so the employer should prepare for how to deal with those issues as they arise. Like other types of projects “scope creep” can result in delay and increased costs.

Choose an investigator. Depending on the purpose of the investigation, the employer may conduct its own internal investigation or may retain a specialized outside investigator. Outside investigators help to avoid bias, and lawyers can investigate and provide legal advice, which means the investigation and report can be privileged and confidential.

Ensure confidentiality and fairness throughout the process. Remind each participant and witness that confidentiality is crucial to an effective workplace investigation. Anyone accused of wrongdoing must be given a full opportunity to respond.

Consider mediation. While interviews are being conducted, sometimes it becomes clear that there is a way to resolve the conflict. A full investigation and report are not always necessary, and sometimes investigators can act as mediators to get everyone onto the same page.

After the investigation. All too often, an investigation happens, a report is written, but nothing more is communicated to the participants, especially the witnesses who were interviewed. While confidentiality must be maintained, it is also important to engage and communicate with those who were involved, so that they are not left hanging.

Ensuring an effective and fair investigation process is essential to protecting both the employer and employee. It is also important to keep in mind everyone in the workplace involved in the investigation, to ensure that there is not additional harm created.