Howard Levitt: Remote working arrangements need to be codified with clear guidelines to boost productivity

What works for Google and Facebook will not work for a small real estate brokerage with five employees.

As this year comes to a close, some working Canadians will still be phoning it in — literally — and doing so for the foreseeable future. But even at this late hour, the long-term consequences of remote working are just being discerned.

Amid the chaos of the early lockdowns, businesses had no choice but to frantically, sometimes frenetically, adapt. As large portions of the workforce were ordered to work from home, employees too had to quickly acclimate to an unfamiliar environment. Often, it was the blind leading the blind.

Almost a year later, most remote workers have become quite comfortable with their circumstances. For employers, not so much. A Robert Half Survey shows that 85 per cent of those working remotely wish to continue doing so, at least in part, when the pandemic ends.

But, as a considerable portion of the workforce continues to work unseen, many businesses have struggled for quality and consistency. Aside from the occasional glimpse through a Zoom video feed, it’s difficult to know where, when, and how one’s staff are performing their functions. While employees claim otherwise, some continue to take advantage of the new lack of structure.

What’s astounding is how simple it is to avoid many of these abuses, and how few businesses are proactive in doing so.

The pandemic placed exceptional new stresses on many, ranging from novel child-care issues to those of domestic violence. As the remote working trend persists, so too will these problems. Indeed, a recent study done by Aternity’s Global Remote Work Productivity Tracker found that, the longer remote working continues, the lower productivity becomes.

So how can employers protect their business interests while affording employees the flexibility many crave? The answer starts with written policies and agreements concerning work-from-home arrangements. A policy, signed by each employee, avoids unnecessary, protracted litigation that arises when people have differing views of their obligations.

Aside from codifying job-related expectations, every employer should consider imposing rules regarding hours worked and overtime. There is nothing preventing employees from suing for overtime pay, notwithstanding whether any real work was performed during those hours. After all, unlike when employees are in the office, there is no easy way to accurately track hours worked.

It cuts both ways.

The Aternity study shows that, while productivity from remote work declines by 21 per cent per hour worked, the hours worked go up on average by 10 per cent.

If the company can avoid self-reported hours through time-tracking software, it should do so. Work-from-home policies should also contain provisos for how employees may track their hours, the number of hours that may be worked in a day, and the requirement that they obtain written authorization for any overtime worked over the provincial maximum, failing which overtime work is not permitted. If that occurs, the employer has a good defence to such an overtime claim. Setting specified expected hours of work and meal hours can assist in both parties knowing when their involvement can be called upon.

Written policies also prevent many productivity challenges. Studies have shown that innovation, creativity, mentoring and training new employees are hampered by the absence of collaborative, face-to-face interaction.

As a baseline, make use of digital collaborative tools and provide for mandatory regular meetings (requiring that cameras be on at all times) where employees are expected to be actively engaged and share their progress. Actively facilitating engagement among staff with digital collaborative tools whenever possible is also advised. Staff should be readily available for check-ins during work hours. I also recommend revamping discipline procedures, for example, mandating more regular check-ins for unproductive employees or appointing designated supervisory staff to focus on supervision and monitoring employee output.

Confidentiality and security can be compromised by remote working arrangements. If security is a concern, policies should utilize virtual private networks and limit access to unsecure networks during work hours or prescribed specific work devices and locations. Absent this, employees can take the position that they can work from any device, anywhere, risking the inadvertent sharing of confidential information with family members or tech-savvy third parties.

Employers should consider their obligations under the Occupational Health and Safety Act that stipulates “taking every reasonable precaution to protect workers.” This does not require it to purchase ergonomic chairs and office home setups for everyone but it may be required for some, and the policies should delineate how and when employees can request accommodation. That act also requires employers to be alive to issues of domestic violence and provide necessary support to employees. That obligation is obviously heightened in a remote-work environment.

There has been much commentary relating to some American companies reducing remote employees’ salaries depending upon the cities they choose to work from. That would normally be a constructive dismissal in Canada. However, as long as employees are permitted the option to work from the office at full compensation, there’s nothing preventing employers from providing staff the choice of working remotely at a lower salary designated by the company. Employers have the right to require remote workers to stay in the city where the company is situated pending a potential meeting or recall. That is unless the agreement is that they need never return.

There is no one-size-fits-all solution to avoiding liabilities arising from remote working arrangements. What works for Google and Facebook will not work for a small real estate brokerage with five employees.

Be creative and alive to individualized solutions if your business permits. Investing time and resources into developing well-structured regimes will not only avoid liabilities but enhance employee engagement and productivity. Perhaps even more importantly, fostering collaboration and high-performance in remote work will keep Canadian businesses competitive on a global scale. Remote working trends are not going away any time soon — some estimates show that by 2025, 70 per cent of the workforce will work remotely for at least a few days per month.

Employees must adapt or be left behind as companies seek out more efficient workers overseas and hire more contractors and temporary workers. After all, if an employee need not work from the office, why bother hiring a Canadian. Placement agencies are now targeting finding employees from anywhere in the world for searches where employees are permitted to work remotely. This could have a devastating, long-term impact on our tax and employment base. In short, if Canadians plan on being competitive, complacency is not an option.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com. Questions are edited for clarity and space.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.