Businesses can seize the opportunity to negotiate new compensation, contractual terms for employees wanting to keep working from home.

Following the unprecedented pandemic, many employers face an unprecedented recall, demanding that employees return to the office after working from home for over a year.

For most employees, that recall will be against their wishes. There will be friction, and while that friction has been at the forefront of conversation, there has been little focus on the rare opportunities this creates for employers.

Now is the optimal time for them to renegotiate existing employee contracts, dangling the carrot of continued work from home arrangements in return.

Unless an employee worked from home before the pandemic, or has already been promised the permanent right to work from home, employers may legally compel those employees to return to the office.

For some employees, that will be undesirable. For others, particularly those who moved long distances, impossible. In either case, employees are motivated to negotiate work-from-home arrangements, and employers may secure value in return for agreeing.

Employers will be playing what might be the most formidable bargaining chip available in recent history. Now is the opportunity to marshal employee enthusiasm for remote work toward new employment contracts with sturdier terms.

For one, employees may accept less pay if they are able to work from home and be receptive to new compensation structures. There remains a bounty of other contractual terms to target at the same time.

We have previously written that most termination clauses are unenforceable as presently drafted, which renders employee terminations prohibitively expensive. However, employees who may have previously declined to sign a new contract with an enforceable termination provision might now do so in exchange for the privilege of working from home.

Employers should also be adding a clause that allows them to implement temporary layoffs. Layoff provisions were incredibly rare in employment contracts prior to the pandemic (except for unionized employees). Their absence created a conundrum for employers, who were faced with constructive dismissal lawsuits when they were forced to lay off employees amid stringent lockdowns. That mistake must not reoccur, and temporary layoff provisions are now a necessity when negotiating new employment contracts.

Employers should also take another instrument from the union tool bag: Contractual terms that allow for disciplinary action. To the surprise of many employers, they do not have the right to suspend employees if that is not in their employment contracts. However, discipline, and particularly the right to suspend, can be a crucial means of maintaining an orderly, productive, workplace.

Perhaps an employee working from home will feel relaxed enough to accept different vacation allotment or working hours. When negotiating with the gilded work-from-home bargaining chip, employers are limited only by their own creativity.

At the same time, those crucial contractual terms can also be implemented in agreements with new employees. There is an unprecedented opportunity for employers to recruit new talent. One could lead the pack in allowing remote work, pilfering star employees from employers who will not budge on a return to the office.

Another technique is to merely time the market. Since the beginning of the pandemic, many jobs have been lost and yet vacancies have been near impossible to fill. With the generous financial handouts offered across Canada during the pandemic, many potential workers elected not to look for work at all. However, with the free flow of government cash set to shortly end, candidates will return to the market. Timing that influx could lead to acquiring top talent.

Instead of fearing the great recall, employers should be seizing it.

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

Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Maxwell Radway is a lawyer at LSCS Law.

BY HOWARD LEVITT AND MAXWELL RADWAY

PHOTO BY GETTY IMAGES/ISTOCKPHOTO

THIS ARTICLE ORIGINALLY APPEARED IN THE FINANCIAL POST AND IS REPRODUCED HERE WITH PERMISSION FROM THE AUTHORS: https://financialpost.com/fp-work/howard-levitt-the-great-recall-is-a-golden-opportunity-for-employers?video_autoplay=true