By Osuji & Smith: Calgary Employment, Business & Family Lawyers EMPLOYERS CAN SUE EMPLOYEES FOR TIME THEFT Three Best Rated “Top 3” Lawyers in Calgary time theft Time Theft Alberta workplace March 10, 2023

Time Theft – Things to Know

EMPLOYERS CAN SUE EMPLOYEES FOR TIME THEFT, BRITISH COLUMBIA COURT CONFIRMS

Despite numerous benefits of remote work, many employers still remain averse to employees working from home, preferring the traditional approach to work. In May, 2022, Elon Musk tweeted that employees working from home are just pretending to work. Misconceived as it may be, the statement does reflect the sentiment held my many employers. Employees working from home are often susceptible to allegations of not working during company hours.

In order to monitor the activities of employees, many employers go as far as to install surveillance software in the employee’s laptop and rely on the intelligence of the software to determine whether the employee has been working or not. In the worst-case scenario, the employer may claim back salary on account of time theft. Earlier in January, 2023, a British Columbia court confirmed the employer’s right to claim return of paid wages to an employee on the ground of time theft.

In Besse v. Reach CPA Inc., 2023 BCCRT 27, the claimant was an accountant employed to work from home. She was terminated for cause on the allegation that she did not work on files she recorded time for in her timesheets, leading to unaccounted hours. She filed a claim for wrongful dismissal.

The employer had installed a monitoring software in order to verify the amount of time she spent in front of her screen for work. While she partially accepted that she had entered details in the timesheets which were not entirely true, she argued that she worked on physical files which the software could not monitor. The employer in turn counterclaimed that she was liable to return the wages paid on account of time theft.

In its judgment, the court relied heavily on the findings of the monitoring software. It held that the software was able to determine non-work activities from work activities. The court held that the software, TimeCamp, was able to record activities in such a way that the employer could identify and classify them as work or non-work related activities. Accordingly, the court held that the employer had just cause for terminating the employee and further awarded the employer $2,603.07 in debt and damages for time theft.

The precedent set by the BC court raises various concerns for those working from home. First and foremost, the definition of what constitutes as ‘time theft’ is unclear and the court makes no attempt to define it. Time theft is generally understood to be the opposite of wage theft i.e. where an employee performs the work but the employer refuses to pay. However, work can encapsulate a wide array of activities which a software may not be able to recognize as work, particularly where the work is non-manual.

For many people, work can include time away from the desk where they discuss matters with colleagues, undertaking mentoring, or even thinking away from the working desk. It is not possible for a monitoring software to determine what constitutes work and what does not with any reasonable degree of certainty. Some software classifies activities based on eye movement of the user, emotional status, attentiveness based on physical disposition, all of which can be very inaccurate. Therefore, reliance on findings of a software without question is concerning.

Aside from the accuracy of findings, the use of such software by employers itself raises ethical questions. Where employees use personal laptops for work, monitoring the activities of an employee can constitute a breach of privacy. In many jurisdictions, particularly in Europe, employers would not be able to undertake such surveillance due to strict data protection and privacy legislations. In Ontario, employers with more than twenty-five employees are required by law to disclose any monitoring activities undertaken by the employer to the employees. The law requires employers to disclose how and in what circumstances the employer may monitor the activities of an employee.

In Alberta, the Personal Information Protection Act offers some conditional protection against improper monitoring by employers, but still permits employers to monitor employees for the purpose of management of work relationships.

The result is that employers may abuse their position in monitoring the activities of an employee. The opportunity to work from home offers substantial benefits to both employers and employees alike. The flexibility of work schedule, avoidance of commute to work, can boost productivity and better performance by employees. However, if employers resort to such invasive monitoring practices, it may discourage employees from considering work from home.

Many employers may argue that they have legitimate grounds for monitoring the activities of their employees in order to ensure that they are actually doing their jobs. However, it should be noted that in this day and age, the proper way to monitor job performance is by verifying results. If an employee is unable to deliver on his/her targets, an employer will be able to determine whether or not the employee is working. It is no longer necessary to rely on intrusive surveillance or installing monitoring software to determine whether the employee is working or not.