How to get employer to pay "garden leave" instead of making me work from home for a year?

Question

I've worked in the Canadian arm of a large US corporation for 8 years now (the company isn't exactly renowned for being civil to its employees) as a senior engineer. I've earned 11 months of severance at my normal rates, plus an extra 3 months of medical/dental coverage after my employment concludes.

My employer has begun laying off employees. However, unlike nearly everyone else who has been laid off, I'm being asked to work throughout my 11 month severance period rather than just getting a cheque for "garden leave" (i.e. I have to work during the notice period, from home, for 11 months, rather than just getting a cheque for 11 months of salary and being told to go away).

The work I'm tasked with, surprisingly, is still important stuff, but my heart just isn't in it. My suspicion is that my employer is simply trying to get me to slip up so they can fire me with cause. For starters, my workload has increased, and the number of people who can help me has decreased, so I can easily see burnout being a thing within only a couple weeks from now. I'd rather use that time to find a new job or enjoy life, not working at a place trying to screw me out of severance.

Are there any actions I can take that would compel my employer to drop this game and just pay me out like everyone else? Ideas so far:

• Announce that I'm interviewing with a competitor.
• Pretend to be planning to go on long-term disability for alcohol addiction.
• File an application form that allows me to work a second job, and note that it will be in adult entertainment (or maybe with a cult).
• Same as above, but that it will be with a professional ethics and regulatory agency.

I obviously don't want to be fired with cause, which is what these guys appear to be after, but I'd like to make myself appear to be a potential problem/lawsuit in the making without destroying my public image and long-term career.

Answer 1

My employer has begun laying off employees. However, unlike nearly everyone else who has been laid off, I'm being asked to work throughout my 11 month severance period rather than just getting a cheque for "garden leave" (i.e. I have to work during the notice period, from home, for 11 months, rather than just getting a cheque for 11 months of salary and being told to go away).

I think you are confused a bit. Getting a cheque in lieu of working the notice period is just that - giving people money without them needing to work the notice period. It may be done for many reasons, but most of the time it is done to cut costs as keeping employees working carries more costs than just their salaries.

Garden leave is still working out your notice period, but due to conflicting interests, for example, said employee planning to work with a competitor, the employee may be put on garden leave to restrict the number of trade secrets they can take with them. While in theory being on garden leave can mean you will be given alternative tasks, like say cleaning office premises, in practice the majority of the time it's being paid to NOT start a new job. With garden leave you will rarely be just given a lump sum (rare enough that I've never heard of that happening) but rather you will keep getting paid every month as before. Garden leave is something entirely done at employers' discretion.

The work I'm tasked with, surprisingly, is still important stuff, but my heart just isn't in it. My suspicion is that my employer is simply trying to get me to slip up so they can fire me with cause.

That sounds like a substantial stretch on your part. A notice period is a tool that works both ways, it protects both employees from being fired without financial backing, and it also protects the employers so key employees cannot just get up and quit the very next day. All they've asked of you is to now keep your end of the contract and work out the notice period you've agreed to in your contract, and nothing more. Nothing unfair about it, just like you are expecting to be paid for the 11 months of the notice period, the company has planned to get work out of you all the way through it.

To ease your mind a little, as you already are serving your notice period then to fire you with cause now, and to not become open to a lawsuit, is pretty darn hard. If that was their plan, it's very poorly thought out, and generally speaking, it will be a lot cheaper for them to just pay you off for the remainder of the notice period than to deal with the litigation of unfair dismissal (getting put on PIP while already serving notice would be a prime time comedy). That is as long as you will keep doing your best to deliver your work, there is no protection if you will start to intentionally screw up, or makeup lies to get out of doing your job.

Are there any actions I can take that would compel my employer to drop this game and just pay me out like everyone else?

I won't go over your list as that's not needed, but I will highlight one thing - DO NOT LIE TO YOUR EMPLOYER. Being caught in a serious lie like this will very likely because enough to just fire you, without paying the remainder of your severance. And all those lies are very easy to found out as such, getting you in very hot water, taking any possibility of a reference together with the next 11 months guaranteed income.

I obviously don't want to be fired with cause

Good, then don't do it, just keep working your notice period and enjoy that you have a year of guaranteed pay while you can hunt for a new job, and have a guarantee of a stellar reference.

I'd like to make myself appear to be a potential problem/lawsuit in the making without destroying my public image and long-term career.

You can't do both at the same time. You either are a problematic person who would try to weasel out of their end of a contract and is willing to do so in a dishonest way, or you are a reliable and honest person whose word is his bond. Up to you to figure out which one you want to be, but I can say without a doubt that the honest one is a much better long term strategy.

I also have to address one thing that you didn't ask, but should've, so adding a made-up question:

How can I discuss my worries with the employer so that we canfind a better, mutually beneficial, solution that makes us both happy? As I am very unhappy to work a job which ends in me being fired in a year, and I'd rather just take a long vacation.

You can do so by having an honest 1-1 with your boss and explain your worries about being fired for cause, and motivational issues with him. Since they want to get a year out of work from you, they clearly value you as an employee (as I said before, it costs them more to keep you on than it would to just cut you a cheque, but they are also getting some work in return) and want you to keep performing. So have an open and honest dialog with your boss, and see what you can come up with that makes you both happy.

Answer 2

You need to understand what your employment contract specifies, and what the applicable national and local laws require.

You appear to be mixing terms. It is possible that you aren't mixing the terms but your managers and coworkers may be using the terms in a confusing way.

Severance is when the company is letting you go, even though you have done nothing wrong and they will be paying you money equivalent to x weeks or months. The formula for the number of weeks or months is specified in the contract and then again in the layoff notice. Other than a few trivial tasks you generally have no obligation to perform work. Generally you can start work at another place the very next day.

Garden leave is when the employee decide to part ways, but the company has decided that they don't trust the employee to do a good job, or it is risky to have them continue to do work; so they send you home and pay you your salary for the time period that equals the required notice period. So If you were to quit and they required two months notice, then if they put you are garden leave they will pay your salary for those two months. What you can and must do during garden leave is specified in the paperwork you are given. Sometimes they stop you from starting work at a new company until the notice period is over. Most of the time these events happen when the employee quits, but they can also happen when the employer wants to nudge them out the door.

What you describe is working from home. They are giving you tasks that are significant is scope, effort, and importance. This doesn't sound like severance or garden leave. In fact I would argue that your severance clock doesn't start until they stop giving you work.

You should have a labor lawyer review the paperwork.

Answer 3

I'm confused at what is going on here. The normal way of being laid off is (1) your employer gives you notice, say 2 weeks or 3 months. You are employed, you have to work, and you get paid, until the end of the notice. Then your employment stops, and you get some severance pay, depending on your contract and your local laws. At that point you are not employed by the company anymore, you don't work for them, and you are free to work for any other company.

If the company doesn't want you to work during the notice period, they have two legal choices (firing you without notice would be the illegal choice): They can make a payment in lieu of notice - so instead of staying employed for three months, you get 3 months salary and are laid of instantly. You stop working for them immediately, and you are free to work for someone else immediately. You get your severance instantly. Very nice if you manage to turn this effectively into a month of paid holiday and two months getting double money by finding new employment quickly. Or the company can give you gardening leave - which means you go home, you do not work for the company, but you stay employed with your salary and cannot start employment elsewhere. Of course you also get the severance pay after three months, and you should have taken the gardening leave to find a new job.

There is no such thing as "severance period". There is a one off payment. There can be an eleven month notice period, a bit unusual, but if that's what they want to do...

If you have a right to severance pay, then you have a right to severance pay and you don't have to work for it. So your employer would have to pay your salary through the notice period, and at the end pay the complete severance pay. If that is not the case then either you are misunderstanding something, or your employer is, so you should contact an employment lawyer you can study your contract and tell you what to do.

(I once had a seven month notice. Company said: We want X finished. If X is finished, everyone gets a bonus, and payment in lieu of notice from the day X is finished to the end of the seven months, plus severance. If X is not finished, there's no bonus, you work till the end of the seven months, but severance is the same. We got the bonus. Bit unusual. )

Answer 4

Given the amount of money involved and at risk and the risks to your career options I would strongly suggest spending what it costs to consult with a lawyer with expertise in this area. A couple of thousand should get you a lot of help and may well be an excellent investment.