Your employer is struggling and doesn’t have enough work for you right now. He’s sorry but he has to lay you off—or at least ask you to work fewer hours. Just till things pick up. You don’t doubt his sincerity. But neither do you have to accept this deal. Learn about your rights if you're temporarily laid off.
Your employer can only lay you off in limited circumstances
“My employer told me I was being laid off temporarily while the company went through a restructuring. I checked my contract, and it didn’t say anything about temporary layoffs. I need to work to support my family, so I made it clear that I didn’t consent to being laid off. I brought a claim against my employer. It was successful, and now I have enough money to hold me over until I can find a new job.”
– Jared, Nelson
The law in BC doesn’t give employers a general right to temporarily lay off employees. Temporary lay-offs are only legal if one of the following applies:
- You have a written employment contract that allows for a layoff.
- You work in an industry where layoffs are standard practice (for example, the logging industry).
- You consent to the layoff.
Your employer must prove they had the right to lay you off for one of these reasons. Even then, the law limits the length of the layoff. See below.
Outside of the situations above, if your employer lets you go temporarily, you have the same rights as someone who gets fired without just cause. That means your employer must give you notice or severance pay. See our guidance on if you are fired.
It’s common for employers to try to thin their workforce during an economic downturn. Your employer may tell you you’re being laid off but you’ll be re-hired when the economy improves. However, the courts have said this isn’t a good enough reason to fire you. You’re still entitled to notice, or severance pay instead. See our guidance on how much notice an employer needs to give you.
The law limits the length of any layoff
If a temporary layoff is permitted under the law (see above), an employer may temporarily lay you off for up to 13 weeks in a consecutive 20-week period.
If the layoff lasts more than 13 weeks in a 20-week period, it can no longer be called “temporary”. At that point, it’s as if you were fired without just cause on the first day of the layoff.
The 20-week period begins on the first day of the layoff. The 13-week period is exceeded on the first day of the 14th week of layoff. If your employer misses the deadline to recall you to work, you now have the same rights as someone who was fired without just cause. In particular, you have the right to notice, severance pay, or some combination of the two. See our guidance on if you are fired.
(Your employer can apply to Employment Standards BC to extend the 13-week period.)
If your employer reduces your hours
Under the law in BC, if your employer lowers your weekly hours so that you’re earning less than half of your regular wage, this counts as a week’s layoff. That is, it counts as one week towards the 13-week “temporary layoff” period.
If your employer slashes your wage, you may be able to bring a claim for “constructive dismissal”. Constructive dismissal happens when an employer makes a fundamental change to your work situation and you don’t accept the change. See our guidance on if your employer makes big changes to your job.
Step 1. Tell your employer you don’t consent to the layoff
If your contract doesn’t provide for temporary layoffs—and you don’t work in an industry where they’re standard practice—your employer can’t temporarily lay you off. It’s against the law. Let your employer know right away (in writing) that you don’t consent to being laid off.
It’s a good idea to keep a record of correspondence with your employer. For example, make notes of when and how you were told you were being laid off. Keep a copy of the letter or email you send opposing the layoff.
Step 2. Start a claim against your employer
If your employer follows through with the layoff, your rights are affected. You’re now being fired without just cause. (See our guidance on if you are fired.) That means you can start a claim against your employer to collect severance pay.
Download the self-help kit from the BC Employment Standards Branch. It contains a step-by-step guide on how to bring a claim against your employer. It includes a Request for Payment form together with a letter that you submit to your employer.
Most employees are required to use the kit before they’re able to file a formal complaint against their employer. However, there are some exceptions. These are set out on the first page of the kit. See if any of the exceptions apply to you.
For more information about the self-help kit, see this factsheet. This guide also has some information on how to resolve a dispute with your employer. Consider sending these documents to your employer with your Request for Payment.
Your employer has 15 days to respond to your Request for Payment. If you don’t hear back within that time, you can file a complaint with the Employment Standards Branch.
Step 3. File a complaint
If you aren’t able to solve the problem using the self-help kit, you can file a complaint with the Employment Standards Branch. Note that, except under limited circumstances, you must complete the self-help kit before filing a complaint.
You must file your complaint:
- within six months of the problem taking place (if you still work for the same employer), or
- within six months of the day your employment ended (if your employer fired you).
If you are within 30 days of the end of the six-month time limit, you should file your complaint first and then use the self-help kit.
You can file a complaint in one of the following ways:
- Submit an online complaint form.
- Print a copy of the complaint form, fill it out, and mail or drop it off at the Employment Standards Branch nearest you.
- Fill out a hard copy of the complaint form at the Employment Standards Branch nearest you.
- Request a copy of the form by calling the Employment Standards Information Line at 1-800-663-3316.
There’s no charge for filing a complaint.
With your complaint, submit any relevant documents (for example, a letter from your employer saying you’ve been laid off).
You can request in writing that your identity be kept confidential. An employer cannot fire you, refuse to employ you, or otherwise mistreat you for filing a complaint.
Step 4. Attend a mediation session
On receiving your complaint, the Employment Standards Branch will investigate and offer to resolve your claim through mediation. Mediation is a meeting involving you, your employer, and a neutral third party called a mediator. It may be a face-to-face meeting or it may be held by teleconference.
The mediator doesn’t represent either party, act as an adviser, or provide legal advice. They have no decision-making authority, and they can’t make a ruling on any of the issues.
The mediation session is conducted “without prejudice”. This means that what’s said in a mediation session stays in the mediation session. Nothing you say can be used against you in a later hearing.
If the problem is solved at mediation, the mediator will help you prepare a document called a “settlement agreement”. Both parties will sign the agreement and each will receive a copy. Once it’s signed, it becomes a legal document which can be filed and enforced at the BC Supreme Court.
If you can’t reach an agreement, the issue will proceed to a hearing before an adjudicator.
Step 5. Attend a hearing before an adjudicator
The purpose of an adjudication hearing is for the Employment Standards Branch to decide if your employer has broken the law. Most hearings are conducted by conference call. But some are held in person. You will receive a Notice of Complaint Hearing. It will set out instructions for participating.
The adjudicator’s job is to hear both parties give evidence on the issues surrounding your complaint. Evidence includes any relevant documents (for example, a letter from your employer saying you’re laid off). You also have the right to call witnesses to give evidence.
Before the hearing, you should:
- review the Request for Payment form from the self-help kit, if used
- review the Agreed Statement of Facts from the mediation, if there is one
- list any points you want to make at the hearing
- make a list of questions you want to ask any witnesses
- make sure any witnesses you want to call are available to participate at the hearing
At the end of the hearing, the adjudicator will issue a written decision, called a “determination”. The determination is a legal document. It can be filed and enforced in the BC Supreme Court.
Step 6. Appeal the adjudicator’s decision
You have the right to appeal the determination of your hearing to the Employment Standards Tribunal. This is a body similar to a court that hears appeals on workplace disputes.
The tribunal rules set out the following grounds for appeal:
- You think the adjudicator applied the law incorrectly.
- You don’t think the adjudicator observed the principles of natural justice (for example, you think the decision was unfair to you).
- More evidence has come to light that wasn’t available at the time of the hearing.
The time limit for filing an appeal is:
- 30 days after the date you were served with the determination, if you were served by registered mail
- 21 days after the date you were served with the determination, if you were served personally, by fax or electronically
To submit your appeal, you must:
- Fill out an Appeal Form.
- Deliver the Appeal Form to the tribunal within the appeal period.
- Deliver a copy of the determination, and the reasons for the determination, to the tribunal within the appeal period.
- Confirm that a copy of the Appeal Form has been delivered to the adjudicator.
If the tribunal finds that the grounds of appeal are met, it may confirm, change or cancel the determination. It may also choose to refer the matter back to the adjudicator for reconsideration. You’ll receive a copy of the written reasons for the tribunal’s decision.
What if my contract says I can be laid off?
In this case your employer is legally allowed to lay you off or reduce your hours of work. However, unless your contract says otherwise, the law sets a limit on how long your layoff can be. See the “Understand your legal rights” section above.
There may be other terms and conditions attached. For example, your contract may state that your employer has to pay you a certain percentage of your regular wage while you’re laid off. It may also say you’re allowed to look for other work in your down time. However, you should always be ready to return to work during the layoff period. If you refuse work, you weaken your claim. The employer may claim that you quit.
The Employment Standards Branch deals with claims against an employer relating to temporary layoffs.
Employment and Social Development Canada can help you bring a claim against your employer if you work in a federally-regulated industry.