Few workers get less sympathy than telecommuters. This is because they do not commute at all. However, from a legal perspective, although telecommuters or remote workers may be out of sight, they are not out of mind for employers.
They must be treated similar to any other employee, even if the nature of their "workplace" differs considerably. Often this does not occur. What are some of the legal disputes faced by Canadian employers and employees who work remotely?
California-based Yahoo Inc. decided this week that all of its remote employees were being recalled back to "work." Is this legal? Can they refuse?
In a recent Canadian case, a company in Burnaby, B.C., allowed one of its senior employees to move to Montreal, where his wife found work. The problem was that he incorrectly assumed that his new arrangement was permanent. Many months later, when he was told to return to the Burnaby office, he refused.
In upholding the company's decision to fire the man, the judge commented that an employer has a right to determine how its business will be conducted and that "it is not for the employee nor for the court to consider the wisdom of its procedures."
However, for employees who have been working from home for many years, conventional wisdom may not apply. If working remotely has become a key term of an employee's job – as it will when the arrangement is no longer temporary or if it is otherwise guaranteed – then an employer must provide reasonable notice of its intention to recall the employee, or risk facing a constructive dismissal claim. In other words, management's discretion only takes a company so far. If a worker has the right to work from home, an employer cannot simply demand otherwise.
What 'working from home' means, and doesn't mean
Does "working from home" mean the work can be done anywhere your home is? Not necessarily, at least according to a recent British Columbia case. When Dean Ernst was hired by a Vancouver software company to work from his home in Alberta, the employer did not want him to move anywhere in the world, even if he was not physically required at its workplace. When Mr. Ernst later permanently moved to his vacation home in Mexico, he was dismissed.
At trial, Mr. Ernst argued that he was entitled to work from home, wherever that may be, and that he did not require his employer's consent to move his residence given that he worked remotely. The court disagreed. It inferred from the language in Mr. Ernst's employment contract that the intention was that he would always work from Canada and that his employer had a right to dictate that.
In this case, the language of the contract prevailed. But what if there were no contract, or if it was silent on this issue? It is possible that a work-from-home employee could work from home wherever he or she wanted, within reasonable limits.
Remote working and overtime claims
Consider the example of a remote worker who argues that she consistently worked overtime and was not paid for it. To prove it, she cites her computer log-off times and the presence of e-mails sent after regular hours. But that "evidence" would not be proof that she worked 10-hour days, as she claims. It would simply show that she was "at work" in the evening. If she took a two-hour lunch each day, or spent an hour walking her dog or watching television, then technically she would have been overpaid, not short-changed.
The point is that statutory rights found in employment standards legislation – such as the right to overtime, break time, vacation time, emergency leave, and even reinstatement after parental leave – all apply equally to work-from-home employees, despite their virtual offices. Employers must take extra care to ensure managers and other decision makers are aware of these requirements, since ignorance will inevitably lead to lawsuits or labour practices complaints.
Human rights and discrimination claims
Human rights tribunals take a broad view of the workplace. Employees or contractors who have never stepped foot in their employer's office have the same rights to equal treatment as any other worker. This may extend to permitting employees to work remotely as a way to accommodate their need to care for children or older relatives, or to adapt to physical limitations.
For example, an Ontario human rights tribunal recently ruled that it was discriminatory for an employer to refuse a worker's request to telecommute so that he could care for his ailing mother. Armed with this expansive precedent, we can expect more workers to test the boundaries of their employer's patience.
The key takeaway, for both employers and employees, is this: Despite working remotely, and sometimes not coming into "work" at all, employees in these relationships are still workers under law. All of the same rights and obligations that they would otherwise have should continue unless – and there is always an exception in workplace law – a contract says otherwise.
Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. E-mail: Dan@canadaemploymentlawyer.com
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