Time Theft and Remote Work
Remote work or work-from-home arrangements rapidly increased due to the COVID-19 pandemic. There also has been a rapid increase in “hybrid” work arrangements where the employee works partly at home and partly at the employer’s workplace. Most recently, we wrote about this topic in our blog COVID-19 Update. In that blog we discuss certain remote work trends that we saw in 2022 that we believe we will see more of in 2023. The first was how more employers will be preparing written policies that would set out certain expectations and limitations of remote work for the employers’ employees. The second trend would be a rise in monitoring of employee performance in a remote work arrangement. For instance, the Employment Standards Act, 2000, was recently amended so that all employers with 25 or more employees must have a written policy in place relating to the electronic monitoring of employees.
Given the above, we decided that we will devote a full blog related to the second trend (a rise in monitoring of remote work and employee performance) as well as discuss the contentious issue of time theft in the remote work context. The issue of time theft is arguably growing given how remote work has also grown. We are seeing more news pieces and media postings about the topic in the recent weeks and months detailing employees who have been fired or terminated for committing time theft or how particular employers are tackling the issue by using certain strategies for monitoring of remote employees, etc.
The definition of time theft is really very simple. It occurs when an employee is getting paid as if they are working when really, they are not working and without the employer’s express or implied consent to not work. And, obviously, an employee may have an easier time in committing time theft when they are not working at the office or in a workplace controlled by the employer but on their own in their own space or home. For example, a common form of time theft in a hybrid or remote work arrangement would be logging onto the employer’s software to perform work but in reality, doing something else such as a household task, leaving to perform a personal errand, etc. To be clear, time theft existed prior to the pandemic. However, the pandemic has seemed to have exacerbated this issue for certain remote workers.
Generally, an employer will proceed to warn the employee if time theft is discovered so that the employee will have a chance to rectify their behaviour. However, it may also be the case that the employer will choose to dismiss the employee for cause if either their warning did not change the behaviour of the employee or simply the employer has chosen to take a firmer stance on the time theft that had occurred.
For instance, a recent case in British Columbia had made news in the last few weeks for this very reason. You can read the decision here. Basically, there was a judgment against an employee ordering the employee to pay back wages that she was paid. The employer had implemented a new time-tracking computer software on the employee’s laptop to monitor the employee and to ensure that she was doing her job. When the employer discovered the time theft issue, it terminated her employment. What is noteworthy in this case is that the employee sued for wrongful dismissal and failed. She was denied “severance pay in lieu of notice” and the court had found that the employer had just cause to dismiss her. She was also ordered to pay her former employer the wages that she had earned during time where it seemed from the time tracking software that she was not working.
There is no way around it, given how ubiquitous remote work and hybrid work arrangements are these days, time theft will be an issue that employers will try to tackle in order minimize outcomes where they are paying an employee who is not doing the work required. When the employee is working out of the employer’s physical workplace it is simply easier to monitor employees in terms of this issue. A manager or supervisor can see what the employee is doing and how they are acting when they are present at the office. To combat the above problem, employers may be using software to digitally monitor an employee who is working remotely. We will certainly see more cases like this in the near future.
However, we want to offer a caveat with respect to the above, to employers who choose to monitor their employees in this fashion. Employers should be aware that it would not necessarily be wise to simply dismiss an employee outright once time theft is ostensibly discovered. The employer should proceed with caution and ask certain key questions of the employee such as if the employee has a reason for not performing work during certain hours before moving to dismissal. Taking an odd break will not meet the threshold for cause. Nor would it be the case if the employee is completing the required tasks and, as such, does not need full work hours to complete the work or perhaps not doing the work in a timely fashion because of lackadaisical attitude (a lackadaisical attitude by the employee would more likely be faced with a warning(s) first before dismissal). Finally, any remote monitoring tools (use of software, etc.) have to be introduced in a lawful fashion and employees should be aware that their work is being monitored.
In short, the issues surrounding time theft and remote work are more nuanced than they may initially seem and making the case for a dismissal for-cause would require deliberate action or misconduct on the part of the employee to defraud the employer.