Employers need to lead when dealing with remote work issues

By Tony Poland, LegalMatters Staff • Working remotely brings challenges that if not managed correctly could lead to employee burnout and have financial and legal consequences for employers, says Toronto-area employment lawyer Brittany Taylor.

Taylor, a partner at Rudner Law, says proactive employers can protect themselves and their staff by adapting policies to reflect evolving workplace norms.

“The concern with a work-from-home environment is that many people are not shutting off at the end of the day,” she tells LegalMattersCanada.ca. “When I finish work, I leave my home office, close the door and I don’t go back into that room until the next day. But that’s not always possible for many people.

“When you are working at home, the office is always right there so it’s very tempting for people, especially people with very large workloads, to jump back on after dinner.”

Long hours can kill

The World Health Organization (WHO) recently reported that working long hours is killing hundreds of thousands of people a year and the coronavirus pandemic may worsen the trend, according to Global News.

The WHO study found 745,000 people died from stroke and heart disease associated with long working hours in 2016, up 30 per cent from 2000, Global reports.

The study examined data from 194 countries and found that working 55 hours or more a week is associated with a 35 per cent higher risk of stroke and a 17 per cent higher risk of dying from ischemic heart disease compared to those who worked a 35 to 40-hour week, according to Global.

Taylor says it is easy for the line between home and work to become blurred.

“People can sit on the couch and go through their work email on their phone,” she says. “That’s not especially new. We’ve had technology that creates this issue of being constantly connected to the office for some time. 

“However, the pandemic is exacerbating that because we now have so many more people working remotely,” she adds. “Before they still had that degree of separation where they were shutting down the computer and leaving the office. Now some people are literally always seeing their computer.”

Working remotely allows flexibility

One of the positive features about working from home is that it allows some flexibility, Taylor says. For example, if a person wanted to take a longer lunch hour to go grocery shopping, they may be able to make the time up later.

However, because the staff is no longer in an office setting, it can be difficult for an employer to track their hours, she says.

“There are laws governing overtime in Ontario as well as in other provinces,” Taylor says. “If you are not able to keep track of your workers’ hours, they could very easily be going into overtime and you are not aware of it.

“Employers may believe just because they didn’t approve the overtime then they do not have to pay it,” she adds. “That’s not the way it works. If someone works overtime, they are entitled to be paid. There’s no opting out of the Employment Standards Act, 2000 (ESA) or the Canada Labour Code (CLC).” 

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Taylor points to an Ontario Superior Court case that ruled a Canadian bank breached its overtime obligations under the CLC.

The court found that “rather than implementing a system to pay for all hours required or permitted (and to track actual hours worked so that this could be achieved), the bank failed to record actual hours worked and made overtime compensation contingent primarily on pre-approval.”

“The bank’s unlawful overtime policies and hours-of-work recording practices were systemic or institutional impediments. That is, they were system-wide in nature and they impeded class member overtime claims that were otherwise compensable under the Code,” writes Justice Edward P. Belobaba.

Lack of awareness is an issue

That lack of awareness of worker hours is an issue “we see quite frequently,” Taylor says.

“There are likely some employers who were worried their staff might not be working as hard since they are at home,” she says. “But I think the reality in some cases is more in the other direction where people are working much more than their employers may be expecting.”

It can be a “huge challenge” for any employer, Taylor says.

“There are many employees who want to work 20 hours a day and it’s not something the employer is causing them to do,” she says. “The employee just wants to put their best foot forward. They want to be as productive as they can and show their worth. Unfortunately by their actions, they are putting the employer in a difficult position.”

Taylor says while it is good to have enthusiastic, hardworking staff, employers must recognize “the legal side” of the issue.

“You have to think about overtime. You have to think about the maximum hours of work,” she says. “Employees cannot work 24 hours a day. There have to be rest periods between shifts. These are legal requirements.”

Taylor says from a practical and health perspective, people who are overworked may be taking more sick days, they may lose focus and their productivity may decline. They could also burn out and need to take a stress leave.

“That can ultimately impact the bottom line,” she says.

Taylor says it becomes a matter of “managing a workforce that is not in front of you.” 

Tried-and-true timesheet

One way is the tried-and-true timesheet, with employees submitting their hours at the end of the week. The same thing can be accomplished with a weekly online meeting or check-in via email to see what kind of hours people are working.

“That way you have the pulse of the workplace and what’s going on. If people are working overtime, you can address it in a timely manner,” she says. “No employer wants to be in the position where an employee goes to the Ministry of Labour claiming they worked overtime and the employer has no records of hours worked and, therefore, no way to dispute this claim.” 

It is important for every employer “to communicate their expectations, particularly around overtime,” she says.

“If an employer does not want employees working overtime without approval, there should be a workplace policymaking this clear, and also advising employees that working overtime without approval will result in discipline,” Taylor says.

“It prevents a situation where an employee is under the impression that unless they were told otherwise, that they have to work the hours needed to complete the job.”

Having a good policy is not enough

Of course, it’s not enough to have a good policy, she says.

“It really is on the employer to communicate their expectations, particularly around overtime,” Taylor says. “It’s also about creating a work environment where it’s possible to comply with the policy. 

“If you’re telling workers they need to take a lunch break but you are bombarding them with work or meetings, making it impossible for them to do that, then you are not following your own policy,” she adds. “You are not creating an environment where it is possible to work in a healthy way.”

In the end, the employer must be transparent about their expectations. 

“The employer needs to create a culture where policies are actually going to be followed and they’re going to be part of their staff’s work-life,” says Taylor.

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