These seven employment trends show how COVID-19 is reshaping the world of work

Howard Levitt: People turning down better jobs if they can’t work from home and women lose decades of workplace progress.

The pandemic is altering decades of employment relationships in ways which are now slowly emerging. Here are seven new workplace trends:

1. Employment contracts will be drafted to permit employers to lay off employees as well as reduce their wages and hours. That’s a constructive dismissal today but it’s not if the parties agree to it beforehand. Few current Canadian employment contracts contain such provisions but employers, even those fortunate enough to not have been sued so far, have become aware of the advantage of placing these provisions into their employment contracts.

2. Employees are selecting and rejecting positions based upon whether they can perform the work, at least in part, from home. Employees who have been home for months are declining better job opportunities, which they would have formerly snared in a heartbeat, if it forces them to return to an office environment. This does not bode well for employers when they force those same employees to return to the office eventually, as many will then start looking for new jobs. This phenomenon will also make recruitment for ‘in office’ positions more difficult. I am confident that this will ameliorate over time as employers increasingly realize that remote work provides less value and fewer employers will thus permit their employees to work from home.

3. Employers that do become comfortable with their employees working remotely will realize that, if employees never need attend the office, the company’s selection pool is much larger and can encompass the entire globe. They will will begin looking for employees who can competently perform the work wherever they may live. That may be a boon for the Philippines and Bangladesh but will cause near ruination here as it hollows out our employment and tax base. At the end of the day, the main mission of a company is to make as much profit as possible for its owners and shareholders. Why wouldn’t they hire someone who can perform the work just as well at a third of the cost?

4. For the same reason, employees permitted to work from home will reconsider where that home will be. If they don’t have to live within commuting distance to the office, they can be in a small town or, for that matter, Nicaragua, Costa Rica or any other place where the cost of living is low and amenities sufficient. Or Paris or London with higher costs but a better lifestyle.

5. Once work in the office resumes but employees insist on working remotely, many employers will provide them a choice: return to the office or continue working from home at a reduced income.

Many employees will select the latter. There is no prohibition against an employer offering this. As long as the employee has the option of working at the office at full pay, offering this option is not a constructive dismissal. From the employer’s standpoint, since they can replace the employee working from home with another employee or contractor anywhere in the world, and many employees have learned to enjoy working from home, offering such an option makes financial sense.

This is all in the legal context of the employer having the absolute right to require all employees to return to the office. Even if an employee could prove that they are working more productively at home, an employer need not permit it and an employee’s refusal to return to the office would be cause for their discharge.

6. Many more employers will turn to layoffs and remuneration reductions when they fall on hard times, and even sometimes when they don’t. Those employees who accepted layoffs or wage reductions without protest will arguably have lost their right to complain if the employer imposes that again. The employer will argue that there is now a practice between the parties permitting this, an argument they could not have made when they did it for the first time. Even other employees, who were not affected but are newly hired into companies who laid off or reduced the hours or wages of others, will have more difficulty arguing that it’s a constructive dismissal. The employer will say that it has a practice of layoffs or reductions and it now has a right to do so as it has become a term of employment at the company.

7. Decades of progress made by women in the workforce are being rolled back as they have disproportionately borne the brunt of COVID-19 by staying home to look after children. So much for equal parenting. Some employers may be more reluctant to hire women in response.

And now on to questions I received recently.

Q: When a company enters into a contract with someone as an independent contractor, can the court decide if they are an employee? If both parties enter into the contract with eyes wide open and are aware of the implications, does the court have any place changing it?

A: Whether someone is an employee or an independent contractor is a matter of law. If you are an employee, in terms of your actual relationship with your employer, it does not matter a whit whether your contract says you are an independent contractor, or you invoice them and are not T4-ed. You still have full employment law rights. In my experience, the vast majority of workers, who are called, and believe they are, independent contractors, are actually employees.

Q: After you sue your company can you still go back to work when they call you?

A: If you sue for constructive dismissal, you have to resign and claim you have been effectively dismissed. If you have your income reduced you can keep working and sue for the difference. You likely will then be dismissed anyway putting you in the same position as if you had asserted constructive dismissal.

Q: Is an employer required to pay an employee if they are on leave due to an infectious disease, according to the Ontario Employment Standards Act?

A: No, but a non-union employee doesn’t have to accept it in most cases and can claim constructive dismissal based upon the layoff.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.