Boundaries must be set to avoid potential overtime claims
Question: Can an employer require all employees to take their laptop computers home with them every day so they always have access to their work in case they’re unable to come in?
Answer: It is now commonplace for employees to have access to their work email on smartphones and other devices, allowing them to be “connected at all times.” While these devices make it convenient for employees to work almost anywhere, it can be difficult to set boundaries regarding when the workday truly ends. The same concerns arise when asking an employee to bring other work devices home with them, such as a laptop.
Asking an employee to take her work laptop home each day is not, in itself, problematic. However, employers must be very careful to clearly define their expectations, particularly regarding availability to work outside of regular hours, or they may be exposing themselves to significant legal liability and additional costs. For example, the Ontario Employment Standards Act, 2000 (ESA) stipulates that any employee who is not a manager, supervisor or other exempt position is entitled to overtime pay for hours worked in a week that exceed 44 hours. If an employee is continuing to work outside of regular hours, she may quickly become entitled to significant amounts of overtime pay. In this case, an employer may have no way to track the overtime hours being worked by the employee. If the employee subsequently makes a claim for overtime, the employer would have little or no ability to refute the allegations (though email records can be quite helpful in this context).
Additionally, an employee who is consistently working in the evenings or on weekends may not be getting the required hours free from work, and may be working well in excess of the daily or weekly limits established by employment standards legislation. When employees do not have proper rest periods between workdays or at the end of a work week, they are more likely to become overwhelmed or drained. Furthermore, the stress and pressure of having to be available constantly can have a significant negative impact on an employee’s emotional, mental and physical health and, in the worst case, give rise to claims of harassment or a toxic work environment.
To combat these risks, employers, especially those who want employees to have access to devices and laptops outside of regular working hours, should have workplace policies in place which clearly set out limits and expectations with respect to working outside of regular hours, or away from the workplace. And, of course, they should ensure that all managers are aware of the policy; a policy which says that employees are not to check email after 6:00 p.m. is meaningless if a supervisor routinely emails subordinates in the evening and expects a response.
