Recap: Virtual Employer Forum – Employment Contracts in the time of COVID-19

Fiona McFarlane

By Wendy Woloshyn.

Last month, Kent Employment Law hosted its first Virtual Employer Forum of 2021. The topic? Employment contracts in the time of COVID-19.

Simon Kent

KEL lawyers Fiona McFarlane and Simon Kent reviewed the basics, highlighting several key issues for employers to consider when it comes to contracting with their employees, including overtime, layoffs, non-competition covenants and termination. Joining them were several employers, entrepreneurs, managers and human resources professionals, whose timely questions provoked thought and some lively discussion.

For those of you who weren’t able to make it, here are our top three takeaways:

  1. Make sure you have written employment contracts in place for all of your employees. If you don’t have written contracts, or the ones you have need updating, you will need to provide each employee with adequate consideration (a legal term referring to something with value) in exchange for their signing an agreement. As always, to ensure the contract is properly drafted and consideration exchanges hands, we highly recommend you seek the assistance of an employment lawyer when creating these contracts.
  2. Include a clear, unambiguous termination clause in these contracts setting out the employee’s notice and/or severance entitlements. If there is no written limit on an employee’s severance (or that limit is not worded properly) the common law applies. In other words, the employee is entitled under the law to “reasonable notice” of their termination, or an equivalent amount of money. What is “reasonable” in the circumstances will depend on the employee’s age, job position, years of service, and other factors relevant to their re-employability. Having a well-written severance clause eliminates the subjectivity of what is “reasonable”, creates certainty and limits your financial risk.
  3. Layoffs are permissible in limited circumstances. Specifically: (1) with the employee’s consent; (2) where the employee is a seasonal worker; and (3) if they are contemplated in the employee’s contract. Remember, by their very nature under BC law, layoffs must be temporary. Employees in British Columbia cannot be laid off for more than 13 weeks in any given 20-week period. If an employee is not recalled to work after 13 weeks, the layoff becomes a termination of employment. Together, employers and employees can apply for a variance to extend a layoff beyond 13 weeks in a 20-week period. For information about extending layoffs during COVID-19, take a look at the government website here.

Our next Virtual Employer Forum, focusing on respectful workplace policies, will be happening in late February 2021.  As always, attendance will be limited and by invite only. If you wish to receive an invitation to the February event or be added to our newsletter mailing list please contact Fiona McFarlane at fionam@kentemploymentlaw.com.

Have questions about your employment contracts? Contact us!

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