Page 26 - GBC ENGLISH spring 2024

negate that right. A clear and concise clause in your employment agreement stating the employer reserves the right to lay-off an employee for operational reasons allows you to lay-off employees, full-time or seasonal, without fear of a claim of constructive dismissal.
Other often over-looked or misunderstood aspects of employment arrangements are employee status and hours of work. Many employers believe that paying an employee a salary means the employee can work unlimited hours for one base wage. In fact, being paid via salary is a method of payment, nothing more. It does not limit your responsibility to pay employees’ overtime. Employee entitlement to extra pay and overtime is contingent on two things:
1. The wording in the employment agreement
Can you see the difference between these two lines?
You will be paid a salary based on a 40-hour work week.
You will be paid a salary based on an average of 40 hours worked per week.
The first line prescribes a definitive number of hours that may be worked that is inclusive of the employee’s salary. The second line provides for flexibility, allowing the employee to work more or less than the stated number of hours for the stated salary. The difference is that an employee who works more than 40 hours in a work week, when relying on the first line, may be entitled to additional pay, over and above their stated salary, for each hour worked, regardless of their employee status. So, be sure to provide yourself with that flexibility when laying out your terms.
2. The employee’s status (exempt versus non-exempt)
An exempt employee is not entitled to certain rights given to most under the applicable Act or Code. More specifically, managers and supervisors are not necessarily entitled to overtime pay. Non-exempt employees, on the other hand, are eligible for overtime pay once they reach the overtime threshold in their jurisdiction, regardless of whether you pay them a salary or hourly wage.
Seasonal employees typically have temporary or defined term contracts. It is extremely important that a term contract has an end date, or it is not a term contract, which means you may be obligated to pay termination pay or notice when ending the arrangement. If you are worried about flexibility, given the uncertainty around how long the golf season will last, simply use the wording “this employment agreement
may be terminated with one week’s working notice or extended at the mutual accord of both parties”.
LAYOFFS
Your ability to lay off an employee is a significant consideration, which can easily be mitigated via wording in your employment agreement. Other considerations can be cause for liability as well.
Concurrent employment is a danger for any company that re- employs workers over many years or agreements. In an industry that employs non-seasonal workers, the continued use of temporary or term employment agreements can be viewed as continuous employment. Employing someone for years via continuous term employment agreements can be viewed as a method for the employer to avoid termination obligations. Moreover, the amount of time between a layoff and recall, or even a termination and re-hire, must be sufficient for a third party to rule that there was indeed a break in employment.
In seasonal industries, most jurisdictions have special rules that allow you to lay off employees and bring them back without it being deemed concurrent employment. Not all jurisdictions allow for that and in any jurisdiction, you still need to be cautious about the amount of time you leave between layoff periods and the number of years the relationship continues. If you are calling someone back to work within the prescribed temporary layoff period, as per the appliable Act or Code, the employment may be deemed concurrent. That means when you finally do terminate the relationship, with no intention of bringing them back, you could be liable for all their continuous years of service when determining termination pay.
26Golf Business Canada