Workplaces are changing. Even the definition of a workplace has been evolving over the decades. The past year has only accelerated the shift. While the traditional office workplace will undoubtedly survive, more and more employers and employees view the home as another workplace. A recent survey done by StatCan found that most of employees working from home report being just as or more productive as working from the office, while over 80% of employees working from home report that they would like to work at least half of their hours from home in the future.
This shift to work from home raises questions for many employers about occupational health and safety, ownership of equipment, confidentiality, and security, among others. Another question is about the location of work: what if an employee decides to work outside of Ontario or outside of Canada altogether? What are the risks? What options do employers have? These questions are contextual, and answers will vary depending on facts – our experts at Bridge Legal & HR Solutions are here to help you answer these questions, just call 647-794-5442 or email firstname.lastname@example.org.
The Ontario Employment Standards Act, 2000 provides, in s. 3(1), that the provisions of the ESA apply where the employee’s work is “to be performed in Ontario” or the employees work is a “continuation of work performed in Ontario.”
The answer is simple for provincially regulated employees who are working in Ontario: unless otherwise exempt, the ESA will apply to their workplace relationship whether they work from home or work from an office in Ontario, or whether their employer’s location is in Ontario, in another province, or in another country. Employment law is largely geographic in applicability – where the work is performed is the key concern of the ESA.
This analysis is applicable throughout Canada: where the work is performed generally indicates which law applies.
Work Outside of Ontario
An employer might have an employee working from home for the past year, and they might have run into a circumstance where the employee decided to relocate, perhaps even to another province. Depending on the circumstances, the duration, and other factors, the employee may have an argument that his or her employment is now governed by the laws of another province. This can have significant consequences: besides requiring the employer to comply with the laws of another province, consider also that an employment contract may be written with the laws of Ontario in mind. It could be that a termination clause, vacation clause, or another portion of the contract is now void because, for example, it is drafted under Ontario law while the employee has now moved to Quebec.
In a 2019 decision by the Ontario Labour Relations Board, Shu Zhang v IBM Canada Limited, the Board found that the Ontario ESA does not apply to an employee who worked in Ontario from 2009 until 2015, and whose manager permitted him to work from home in British Columbia from late 2015 until the employee alleged constructive dismissal in early 2018. The employee told the Board that he was an Ontario employee because:
- he worked hours aligned with Ontario’s time zone;
- he did not receive a health benefit that other IBM employees received in BC despite an offer to enroll in that benefit;
- he viewed himself as an “Ontario employee” and working in BC was temporary.
Despite these factors, the Board was not convinced that the work the employee was doing was either being done in Ontario or was a continuation of work in Ontario. The employee was, therefore, not entitled to severance under the Ontario ESA.
This is only one case among many others on this matter. Have questions about employees working outside of your business’ province? Call Bridge Legal & HR Solutions today for a free initial consultation: 647-794-5442 or email@example.com.
Work Outside of Canada
The risks are compounded if an employee decides to perform work outside of Canada: the applicable employment or labour law may have significant differences from Canadian law while, in addition, tax impacts and other risks may arise from the change. The same can occur for employers who are headquartered outside of Canada, but who have an employee relocate to Canada.
In Rhinehart v. Legend 3D Canada Inc. the employee was employed in California from 2012 until around 2016. His employment was subject to an arbitration agreement nominating California as the jurisdiction for mandatory arbitration of any disputes. The employee relocated to Canada in January 2017 and worked for the employer’s Canadian subsidiary without signing any further employment agreements. His employment was terminated in March 2018.
Although the ultimate reasoning of the Court relied on the decision in Heller v. Uber, the Court noted that, because the employee’s work was, lately, performed in Ontario, the inclusion of a mandatory arbitration agreement in the employee’s contract was an attempt to contract out of the Ontario ESA which is not permitted. The arbitration agreement was therefore found to be invalid based on Heller principles, but the Court indicated that had the Heller principles not applied, the arbitration agreement would be void anyway because the Ontario ESA applied to the employment relationship.
How Bridge Legal & HR Solutions Can Help
So, what can employers do to avoid additional legal risk and administrative costs? One key item is professional and expert advice, which we at Bridge Legal & HR Solutions are happy to provide. Please feel free to contact us at 647-794-5442 or at firstname.lastname@example.org.
Our workplace experts have also identified some key tips to consider:
- Ensure your workplace agreements have a location of work clause that specifically requires employees to work from a particular location (with flexibility for the company to change that location if desired).
- Employees should be made aware of expectations regarding the location of their work.
- Employees working from home should be made aware of expectations that their work will be done in a specific location.
- If you have policies (you should) regarding working from home, those policies should also set expectations regarding location of work.
Contact Bridge Legal & HR Solutions at 647-794-5442 or at email@example.com if you have any questions about work location, workplace laws, workplace investigations, human resources, or immigration law. We are here to bridge the gaps for you.