DONNA

Lady Justice: Time Thieves Beware

“Like sands through the hourglass, so are the days of our lives.” Before there were reality shows (which I naively considered would be a fad), there were soap operas. I enjoy many different pastimes, but passing time watching reality shows and soap operas are not among them. Any show you can miss watching for a quarter of a century and feel that you haven’t missed anything is proceeding at a pace other than mine. Nonetheless, that introductory quote from Days of Our Lives repeated every weekday for over a quarter of a century did make an impression.

Days of Our Lives started its run in 1965 and is still running. “Run” might be an overstatement. A glacial pace seems a more apt description. With climate change, that too might be a generous term. Daytime soap operas were a staple of many individuals who worked from home in the unpaid position of homemaker.

From the point of view of employees and employers in many occupations, time equates to money – wages paid for time spent working, and not watching soap operas. Some employers wonder if some employees’ opinions may differ on that point.

Prior to the remote work revolution, many employers could at least see their employees at their desks and assume they were working. But what about remote workers? How does an employer know if the employee even has their computer turned on much less not streaming the latest episode of Days of Our Lives?

Recently, the British Columbia Civil Resolution Tribunal found in favour of an employer in a wrongful dismissal case. The new employee accountant worked from home and was found to be very inefficient at her work on client matters. The employer initiated a performance improvement plan and installed a time tracking program on the employee’s work laptop.

The employee was terminated for theft of approximately 50 hours. She sued for wrongful dismissal and to recoup unpaid wages and damages. The employer has the burden of proving just cause for termination which ends its duty to provide reasonable notice of termination or pay in lieu. The employer counterclaimed for the stolen time.

The accountant argued that her work laptop was also available for personal use but the employer noted that the time tracker could delineate computer time on files versus other sites. The employee also argued that she was working on paper copies of the records offline. The employer established that she did not print enough copies for that to be possible.

The tribunal found against the employee and in favour of the employer’s submissions – just cause existed due to the behaviour of the employee undermining the essential trust needed in an employment relationship. The tribunal also went one step further and awarded the employer the right to repayment pursuant to its counterclaim.

Where do you draw the line on employee monitoring in the digital age? Balancing accountability, mutual trust and privacy are ongoing issues. If your employee’s job is making thingamajigs, nobody is going to stop you from counting them, to ensure accountability. That is straightforward, but the current remote work scenario raises many issues for both employer and employee behaviour.

I recall my first government job as a telephone operator after graduating from high school – I received statistical reports similar to those in baseball. They would note how few keystrokes were used in the search for the requested number and how long each call was. I was lucky on Sunday morning shifts, after a long Saturday night, that everyone not sleeping in (like they should) called for the number for some Canadian Tire location. I had those memorized so I could nap lightly on my keyboard and keep my stats in line. With a headset and keyboard, there were no other duties to be performed so theft of time was not an issue. As a lawyer, we still record and account for our time in many areas of practice.

Watching soap operas during your unpaid position as a homemaker is understandable. Whether you are a remote worker or not, soap operas, social media and other time passers during your paid hours could end up costing you.

Donna Purcell, K.C., (aka Lady Justice) is a Central Alberta lawyer and Chief Innovation Officer with Donna Purcell QC Law. If you have legal questions, contact dpurcell@dpqclaw.com.

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