Half the working population facing terms-of-employment changes, says Howard Levitt
The COVID-19 pandemic has impacted every area of law — from family, to criminal, to IP and competition law, just to name a few.
But Howard Levitt, an employment lawyer, radio host, weekly National Post columnist and senior partner at Levitt LLP, says no area has been affected more than labour and employment law.
“More than half the country, right now, has had their work terms-of-employment changed,” he says. “It is the most, by far.
With the light at the end of the pandemic’s tunnel in sight and governments making plans for a multi-phased reopening of the economy, both employees and employers are full of legal questions on how to handle the transition, says Levitt. Prominent among the questions Levitt is fielding from his employer clients, is how to get laid-off employees back to work, especially if they would prefer staying away and collecting the Canadian Emergency Response Benefit.
“How do you deal with employees that are scamming? How do you deal with employees that are claiming to be sick when they're not, in an era where, in Ontario, you can require doctor's notes?” he says.
There are many reasons why employees may try to refuse the recall, he says. The employee may have an ill parent, be immune-compromised or have kids at home — still out of school — to take care of. Some employees may refuse to return because they are worried it is unsafe, or they argue they were given insufficient notice. The firm is developing a return-to-work protocols for employers.
“And since every situation is different, how do you deal without appearing to discriminate? How do you decide for each case, so you have consistency of approach in bringing back employees?”
When an employer alters the work relationship with an employee such that the employee believes the employer is not holding up their end of the employment contract, employees can make a claim for constructive dismissal. Temporary lay-offs, hour-reductions and salary cuts carry with them the risk of constructive dismissal claims. To prevent constructive dismissal, Levitt says employers need to get their workers to agree to these measures, which, given the current economic circumstances, he’s finding employees are doing.
“Give them a choice between a layoff or a reduction in wages or a reduction in workweek and being terminated. Because then at least there's consideration of the choice,” he says. “The economy is doing so poorly and has such limited prospects going forward. People understand that we were in a full-employment economy two months ago, but now we're looking forward to a very high unemployment economy. So, people, in almost every case, are accepting the layoff or reduction of wages or work-days or hours.”
On the other hand, Levitt is also advising employees on their options when given that choice — taking the reduction in hours or wages or suing for the difference. If agreeing, he says it is important employees draft letters to their employer, so the measures being taken won’t either continue indefinitely or be used as a precedent. Otherwise, Levitt says, a few years later, when business slows, the employer may legally reinstitute the reduction, relying on the current, agreed-to work-arrangement as an “implicit contract of employment.”
“Which is a strong legal position for an employer to take, if the employee accepts it without objection,” he says.
Levitt says he expects a lot of employment disputes in the wake of the pandemic. Because Canada was experiencing a full-employment economy pre-pandemic, employers were “flush with capital” and “short on employees,” and eager to settle quickly to avoid costly litigation, he says. Now, because of the recession, that’s going to change and the gloves are coming off.
“Employers won’t be able to afford to write cheques like they’re handing out toilet paper,” he says. “They're going to be looking for more aggressive counsel. They're going to be looking to take tougher positions with their cases. They are going to be looking to set precedents. They're not going to be settling cases quickly and expensively anymore.”
“So that's going to be a major change post COVID.”
For those fortunate to have maintained full-employment, COVID-19 has precipitated a massive transition to remote work — including in the legal profession. In Canadian Lawyer’s recent cover story on the issue, lawyers said remote work should have been implemented long ago and after the pandemic, will continue. Levitt disagrees.
“I have long been an advocate against working from home because I find it unproductive and eventually employees, most employees will do what they have to do and won't work as hard as they used to,” he says.
“I've had cases where we've tried to move people working from home back to the office. They sued for constructive dismissal and, in discovery, I found they had four other jobs.”
Levitt adds he’s felt the ineffectiveness of remote work in his mediations. Pre-Zoom, he settled around 85 per cent, and with Zoom, just under 50 per cent settle. “That’s a big difference,” he says.
“Do I think people are going to be working from home more than they were before? Of course, they are because they're used to it. Employers will tolerate it to a point. I won't.”
Levitt will appear on a webinar hosted by Canadian Lawyer called COVID-19 and Return to Work: Critical OHS and Employment Law Considerations, on June 10 at 12 pm EST.
