Recalled or Rehired? – Returning to Work After Covid-19 Layoffs

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What are the differences between being “recalled” and “rehired” when returning to work after Covid-19 layoffs? As government restrictions on workplaces are becoming more relaxed, businesses that have laid off their workers due to the pandemic can now begin rebuilding their teams. However, employees who are hired back should be aware of the legalities surrounding their return to work.

Recalled or Rehired?

If a person was terminated and given notice or pay in lieu of notice, the employment contract has been severed. Therefore, when that person goes back to work for that employer, they are in a position to renegotiate the terms of their employment contract. In such circumstances, the employee is being “rehired” by the employer.

On the other hand, if a person is temporarily laid off, they retain the terms and conditions of their employment and, are brought back before the expiration of their layoff period in which case the employee is being “recalled” to work.

Temporary layoffs

At common law, in the absence of an express or implied provision in the employment contract allowing the employee to be temporarily laid off, a layoff will constitute a termination of employment on a without cause basis.

Where a layoff is legitimate, the BC Employment Standards Act (“ESA”) considers an employee laid off as soon as they earn less than 50 percent of their weekly wages at the regular rate and there is planning to return the employee to their regular schedule. In BC, for employees subject to the ESA, a temporary layoff can be no longer than 13 weeks, at which point, the layoff becomes a termination.

Right of Recall?

As explained above, a recall is a process of bringing employees back to work after placing them on a temporary layoff. Typically, the “right of recall” pertains to unionized employees under a collective agreement. Unless contractually specified, non-unionized employees don’t have a “right of recall.”

While the ESA includes a temporary layoff provision for non-unionized workers, it does not provide employees with the “right” to be recalled. However, in the event that an employee is recalled, then he or she is entitled to notice of termination.

Can I be Legally Treated as a New employee if I am “rehired” after the Covid-19 pandemic?

When an employee is laid off, they are still an employee and retain the rights they had before the layoff. If the employer brings the employee back, they must provide them with the same income and benefits at the time of layoff. Otherwise, the employee may be found to have constructively dismissed the employee and owe them notice or payment in lieu of notice.

DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice.  To provide legal advice on your problem, a lawyer must first understand your specific situation.

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