Four Potential Risks with Remote Working Arrangements

The “Great Resignation” shook businesses across the world. Employers saw employees, many dissatisfied with their 9-5 office jobs, depart for “greener” pastures, to start their own businesses or to pursue their passions. In British Columbia, as in other parts of Canada, that sentiment, combined with a hot labour market, has made it more difficult than ever to attract and retain employees.

As a result, full or hybrid remote working arrangements, although once mandated by the government, have become increasingly popular amongst employees, as they give them the flexibility to dictate where and how they work. While they may be a fantastic tool to attract and retain relocated or yearning to relocate employees, employers should be aware of the legal issues that remote working presents and the best practices for avoiding them.

Workplace Safety Obligations

In BC, employers are obligated to ensure the health and safety of any “workplace” where their employees are allowed to work. This includes their own home.

At a minimum, employers should work with employees to ensure that their workspaces (e.g. home office) are safe and ergonomically sound. Employers can take it a step further by implementing safety policies and checklists to ensure that they are compliant with their workplace health and safety obligations.

Which Workplace Laws Apply?

Remote work for anything beyond a brief temporary period in an entirely different province or country generally means the workplace laws of that province or country apply to that employee for the purpose of their employment rights, as well as social security and tax purposes. Where the employee does not hold a work permit or the nationality of the location, there can be immigration issues as well.

Employers should ensure that they agree with their employees on where they are working remote if more than a brief temporary period.  If prepared to allow employees to work remotely in other provinces or countries, get advice about local employment and tax laws and consider using a Professional Employer Organization (PEO) as the nominal employer. Employees moving outside Canada should be required to show or obtain any necessary work permits.

Right to Change Arrangement

Absent a clear stipulation to the contrary, if the employer unilaterally cancels or reduces the remote working arrangement, this can potentially be a ‘constructive dismissal’, entitling the employee to quit and receive severance.

It is prudent for employers to include in their remote working policies and agreements the explicit right to require the employee to return to working at the employer’s workplace at their sole discretion. Where the employee has made substantial commitments based on remote working, some advance notice of any change should be given.

Overtime/Productivity

Employees working at home may end up working longer hours than they typically would at the office. Moreover, without the in person oversight typical in an office, employees will often work irregular hours that add up to more than 8 (or even 12) hours per day, triggering overtime pay liability. Certainly, the overall risk of overtime being worked is higher with remote work.

In BC, with a few exceptions such as managers (as defined in the Employment Standards Act), employees are entitled to 1.5 times their regular wages for any hours worked over 8 hours and 2 times their wage for any time worked over 12 hours. There is also “weekly” overtime to account for if the employee works more than 40 hours a week even if no day worked exceeded 8 hours.

For overtime eligible employees, employers should ensure that they have clear language in their policies or agreements that sets out expectations for work hours, including a requirement that overtime must be approved in advance and reported in the week worked. Additionally, employers may consider monitoring employee log-ins and emails to ensure that they are not overworking. While these are not foolproof defenses, they are steps an employer can take to mitigate the risk of an unexpected overtime pay claim.

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