Working from Home – Legal Issues You May Not Have Considered

Over the last decade or two, we have been exposed to a significant enhancement of technology which has allowed virtually instant communication and transmission for almost all workplaces. At the same time, there has been a consistent desire for better work life balance. The combination of these two has resulted in a desire by many employees to spend their work days, or parts of their work schedule, working at home, rather than attending their employer’s workplace.

There continues to be an ongoing debate about whether working from home, or telecommuting as it’s called, is an asset or a liability to employers. Certainly in some industries, working from home does not make practical sense. Manufacturing and transport are sectors where the nature of the work largely requires employees to be either in one location working together or moving to various locations as part of a service. Other activities such as banking, insurance, service and sales are more readily suited to having employees work from home, either partially or full-time.

In the last few years some major US corporations have reversed the ability of employees to telecommute, on the theory that a failure to socialize with their fellow employees inhibits creativity and is a detriment to team work. Other employers believe that reducing or eliminating employees’ commuting time enhances their productivity and creates happier employees. I will leave it to you to decide where your company fits in this debate, but I think it is appropriate for you as an employer, if you do have or wish to allow telecommuting, to appreciate some of the legal issues which arise as a result. In no particular order, here are things you should be thinking about:

First, if you establish a telecommuting arrangement with an employee or employees, it should be fairly specific and in writing. It’s also my recommendation that it give you as the employer the right to cancel this arrangement and allow you to insist that the employee work from your office. This is so because if you find that the telecommuting process is not working, either for one particular employee or for everyone at large, you may be faced with an argument by an employee that he/she is being constructively dismissed if you now require them to work in your offices.

Secondly, confidentiality and privacy as you are aware are significant workplace issues. Are your telecommuting employees using your computers or their own computers to work from home? What happens if these devices and equipment are lost or stolen? It is obviously a problem if an employee integrates personal information on a laptop with company property. What happens if a nosy neighbour comes over for a visit to your employee  and decides to read confidential information your employee has left out on the coffee table? What happens if your employee’s dog decides that your company’s property is more nutritious or tasty than what it currently gets fed? Or what if your employee’s younger child decides to use your new product development information as a project at school to impress the teacher? You can see that any number of things can easily happen by virtue of your employee simply having your work information and product sitting at home where it would be not be secured as it would be in your office.

Speaking of security, are your employees working from a specific office in their home or do they use any and all parts of the house, depending upon their personal lifestyle? If there is a flood or fire in their house, what happens to your property? Is their house adequately insured for this purpose and how do you retrieve or claim any such loss or damage through an insurer that you have not contracted with?

It’s important to understand and remember that a telecommuting employee is and continues to be governed by all employment related statutes. This includes the Workplace Safety and Insurance Act, the Occupational Health & Safety Act and the Employment Standards Act. That may be stating the obvious, but think about this. If your employee has a fall at home, on property over which you have no control and perhaps no knowledge, they are likely going to be able to assert a claim under the Workplace Safety and Insurance Act. If their home or portions of their home are not properly maintained, this is likely going to be seen as a potential violation of the Occupational Health & Safety Act for which you as the employer are responsible, regardless of whether the employee is negligent. And do you know what hours your employee is actually working at home? I ask this question not to suggest that the employee is misleading you in any way, but remember that you as an employer are required to keep records of hours that employees work, unless they are exempt for this purpose under the Employment Standards Act. If there is a breakdown in the relationship and the employee claims that they have worked dozens of dozens of hours at home for which you would find incomprehensible, your failure to keep those records may come back to haunt you if the employee makes a claim for unpaid hours worked plus overtime.

Finally, you must also be consistent in how you apply permission for employees to telecommute. Allowing some employees to telecommute, and then refusing others on the basis that there are now “too many” doing this, will inevitably create friction and unhappiness in the workplace, but may also lead to an allegation of discrimination under the Human Rights Code.

The bottom line is that you should establish clear ground rules if you are to permit telecommuting and understand the possible legal issues that arise. As one business owner recently told me, it’s probably better for you to not agree to telecommuting in the first place if you are going to be spending a high amount of time and energy monitoring the employee’s activities.

So ultimately it’s a business decision as to how and to what extent employers allow employees to telecommute. That decision, however, should be made with full recognition and appreciation for the various legal issues that are potentially involved, and I would be happy to talk to you about that.

Tom Stefanik discusses a number of key legal issues that employers should consider when deciding whether or not to allow employees to telecommute.