Can an employer require a worker to be on garden leave, that is, continue to employ and pay a worker during his notice period but require him to stay at home and not participate in any work?
Employment & Labour Law
There is no prescribed right for the employer to require the worker to be put on garden leave. Employment agreements may specifically provide for this issue, but if this is not set out in the employment agreement, employers may generally put an employee on garden leave if the employee continues to be paid his or her entitlements and salary.
However, the period of garden leave should not be so long as to render the employee’s skills obsolete. For certainty, it would be advisable for the employer to clearly set out its right to put the employee on garden leave in the employment agreement.
Where an employee is entitled to a notice period by contract or statute, the employer generally may require the employee to remain at home and not participate in work. Unlike in many countries, however, it should not be assumed that garden leave arising from an employee’s obligation to provide pre-termination notice under an employment contract would be valid in the U.S. if it does not satisfy restrictive covenant requirements. When used to keep an employee out of the work environment, garden leave operates much the same as a broad non-compete clause and has been recognized and scrutinized by the courts as such, as discussed in response to question 17.
No. Garden leave clauses are not valid under Spanish legislation.
Turkish Labour Law does not specifically regulate garden leaves and does not provide for other provisions which would expressly prevent the structuring of such an arrangement. However, to the extent the main purpose of the garden leave would be to set-up a specific contractual arrangement preventing the employee from working with a competitor and/or possibly sharing with a competitor sensitive business information, Turkish law provides for the possibility of contractually agree on a non-compete period of up to 2 years (extendable under certain conditions) which can be subject to compensation (see Question 17). In practice, this way of contractually arranging the garden leave might prove to be more secure from a legal standpoint since maintaining the employee on the payroll of the company for a given period of time while he/she is not actually working for the company might give rise to other legal issues (e.g. risk of challenging of the validity of the arrangement by the employee on the ground that the labour relationship is fictitiously maintained).
Yes, in general it will be possible, however instead of a gardening leave it will be advisable to terminate the agreement immediately and pay the severance or propose to the employee a termination by mutual consent and pay a bonus.
In principle, an employer is allowed to put an employee on garden leave even against the latter’s will.
The prevailing doctrine and jurisdiction provide for a few exceptions where an employee has a legitimate interest in effectively rendering his/her work, though. This particularly applies to professional groups such as artists, professional athletes, surgeons, pilots, etc.
Yes, as long as the employer pays salary, it can generally require its employee to stay at home and not participate in any work during his notice period.
Yes, employees can be placed on garden leave during their notice period and be required to stay at home. Such provisions are generally incorporated in the contracts of employment and policies of the employer. The employees are entitled to their full salary during the period of garden leave.
As referred in questions number 4 and 5, there is no minimum notice period required to terminate employment. Consequently, the option of garden leave it is not applicable in our country.
While the Labour Law does not specifically provide for garden leave, an employer can pay an employee during his notice period but require him to stay at home.
There are no laws or rules in China regulating the legal term of ‘garden leave’, however such practice exists where employers grant employees ‘garden leave’ on full pay. Ordinarily the legal risks for the company in these circumstances are not very high, unless the employees claims the work conditions as stipulated in the employment contract and in this situation, the evaluation of the relevant consequences can be made on a case by case basis.
The main rule for private employers is that they unilaterally may under certain circumstances release the employer from performing work during the notice period. This lies within the employer’s right to direct the work at the workplace. However, the EPA prohibits the employer from suspending the employee from work during a dispute regarding the validity of a termination of the employment.
Unless the stay-at-home order causes serious disadvantage to the employee, an employer may order an employee to stay at home and not participate in any work related matters as long as the employee is paid during his notice period.
Under Austrian law the employers may release employees from their duties to work during the notice term. Furthermore, the employee shall stay away from work during the entire or part of the notice period while she/he continues to be employed and to receive pay and benefits. While a worker is on garden leave, she/he is usually forbidden to contact any of his employer’s customers or fellow employees and is also denied the company car, laptop, smartphone (unless private use has been permitted). During the time on garden leave, the employee must observe any restrictions in the contract such as competing or doing second job whilst an employee, and also observe possible implied duties. In practice, an employee is expected to be available to provide their employer with information and support when required while being on garden leave.
Canadian case law on the permissibility of ‘garden leave’ arrangements remains underdeveloped. However, there are indications that, at least in Ontario, a clearly drafted garden leave clause may be enforceable.
However, in the absence of a contractual provision expressly permitting an employer to remove some or all of an employee’s job duties, there is a risk that requiring the employee to stay at home and not participate in work would constitute a substantial change to a fundamental term of the employee’s contract of employment, and thereby amount to constructive dismissal. Subject to the terms of the employment agreement, an employee who has been constructively dismissed can treat the contract as terminated and leave. In such circumstances, the employee can demand notice and/or severance pay and immediately begin seeking other employment.
Any clause in the employment contract allowing the employer to decide to put a worker on garden leave during his/her notice period is null and void. It will not be enforceable. Garden leave arrangement is possible with the consent of the worker only.
During the notice period the employer may release the employee from the obligation to perform his/her duties. Such release may however not impact the employee’s entitlements.
If the employer decides to release the employee from his/her work obligation during the notice period, this should be stated in writing, i.e either in the dismissal letter or in any subsequent letter.
During the notice period or after a conclusion of a termination agreement the employer can require the worker to be on garden leave against the worker’s will only if the employer’s interests regarding the garden leave prevail. Provisions stating the employer’s right to make the employee go on garden leave are often found in employment contracts. Such a provision is valid, if it concerns dismissals for cause (with phasing-out period) or dismissals due to conduct. In cases of dismissal for operational reasons or for reasons of illness the employer can only require the worker to be on garden leave under certain conditions. However, sending employees on garden leave after a dismissal is common practise and employees seldom object.
It is not a common practice in Mexico, since the employer can terminate the employment relationship immediately.
Yes, an employer can order an employee to be on garden leave for either the whole notice period or a part thereof.