Technology advances bring new workplace challenges

By Tony Poland, LegalMatters Staff • As technological advances continue to reshape the workplace, employers and employees need to be careful to protect their rights and ensure they are accountable while meeting their obligations, says Toronto employment lawyer Ellen Low.

With innovations such as artificial intelligence (AI) progressing exponentially in recent years, she says workers and their employers face new challenges.

Low, principal of Ellen Low & Co., pointed to a recent British Columbia Civil Resolution Tribunal decision ordering a former employee to compensate her employer for time theft as a warning to those working remotely.

“Time theft is not new. It has been around for a very long time,” she tells LegalMattersCanada.ca.  “Why this important decision is particularly relevant is because it touches on some fears about what employers can do to ensure remote employees are actually working the hours they should.”

‘A bit of a hot-button issue’

“This is a bit of a hot-button issue,” Low adds. “There is a fear that remote employees are not doing what they are supposed to be doing when they are supposed to be doing it.”

In Besse v. Reach CPA Inc., the tribunal heard a woman was hired as an accountant in September 2021 with the understanding that she would work from home. The company installed a time-tracking program TimeCamp on her work laptop in February 2022. Shortly after that, the woman met with her manager who informed her he was concerned that some of her files were over-budget and behind schedule. 

About two weeks later, the manager questioned her about unaccounted hours. The employer told the tribunal they had video proving “she engaged in time theft by recording work time in her timesheets that was not tracked by TimeCamp.”

The woman was dismissed and she filed a complaint with the tribunal, seeking back pay and one month of severance. The company countered, claiming it was justified in terminating her for cause. It also sought to recover 50.76 hours of wages paid to the woman.

The tribunal ruled in the company’s favour and the woman was ordered to pay $2,603.07 “in debt and damages for time theft” along with court costs. 

“This decision demonstrates that where you can show that the employee is not actually doing what they say that they are doing, and they falsify records, the employer will be able to terminate them on a with cause basis,” says Low, who wasn’t involved in the case but comments generally. “The tribunal laid out the consequences clearly. Not only can a worker be terminated for cause for effectively lying about their hours but they may also have to repay the employer for the time that they collected that they didn’t actually earn. That is a pretty significant warning to employees that they may need to less laissez-faire about what they are doing during the workday.

No tolerance for time theft

“The takeaway from this is that there is going to be little to no tolerance with respect to time theft where it can be proven,” she adds. “This is a quite positive outcome for employers who are contemplating a remote work arrangement because they do have recourse for time theft. It is an unusual decision and it is quite employer-friendly.”

Ontario companies with more than 25 employees must have a written policy informing staff if they are being electronically monitored, Low says.

“If this particular case had happened in Ontario, the individual would have been aware or ought to have been aware that her time was being monitored when she was using a laptop for work rather than when she was using it for personal time,” she says.

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The rising use of AI chatbots could increase an employer’s motivation to closely monitor remote workers beyond counting their hours, Low says. This innovation allows users to have humanlike conversations with a chatbot such as ChatGPT. The tool can respond to questions and compose written content such as emails, social media posts and blog posts.

She says Insider.com recently reported that some workers have been surreptitiously using chatbots to help improve their productivity.

However, Low says while chatbots can write compelling posts in a fraction of the time, they have been known to produce false information known as “hallucinations.”

Used extra time to take a class

Insider.com reported that one worker found that using a chatbot for certain coding tasks saved him up to 15 hours a week. However, instead of doing more work, used the extra time to take a class.

“I’m remote,” he told the Insider. “They can’t tell when I’m working and when I’m not. I can ChatGPT my way through solving something in a couple of hours, and then just take the rest of the day off and they won’t know.”

Low says the secret use of AI raises an interesting ethical dilemma.

“Other legal issue aside, the question of whether the employee’s use of an AI workaround is time theft will depend on how the employee is getting paid,” she says. “If he is paid on an hourly basis and he is representing to the employer that he is actually working all those hours, when, in fact, he created a cheat code to do the work faster, but is then taking the time off, that is likely false hourly reporting and time theft.  

“Unfortunately for him, efficiency is not how he is being compensated,” Low adds. “So as helpful as the AI cheat might be, if he is getting paid in exchange for eight hours of work, he needs to do eight hours of actual work, not his subjective value of eight hours of work. However, if he is getting paid on a project-by-project basis, or based on some other metric rather than just straight time, then using some kind of shortcut, may be totally fine.”

Employers should consider an AI policy

Because AI chatboxes are relatively new, it is doubtful many companies have a policy on their use in the workplace, Low says. But it might be a good idea depending on how the technology is used, she says.

“There is discussion about why employers are looking to expressly ban the use of AI and it is not necessarily to do with productivity,” Low says. “There are very realistic fears about inadvertent devolution of trade secrets or relying on error-prone responses from a chatbox.”

She advises employers to critically consider how AI can and cannot be used in their particular workplaces.

“The challenge is, how do you weigh the efficiency with making sure that there is no inadvertent data breach or privacy concern in using those chatbots,” says Low. “It could be a total ban. Then, if an employee is found to be in contravention of that total ban policy, the breach would be investigated and there may be discipline involved to the point of termination. 

“I wonder whether the Working for Workers Act will be expanded or amended to address the use of chatbots at AI,” she adds. “But if an employer decides they want no use of them in the workplace at all, they should create an express and clear policy”.