Employers should set boundaries to avoid any 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 exposed 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 in another 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, he 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 constantly available 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 that want employees to have access to devices and laptops outside of regular working hours — should have workplace policies in place that 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 all managers are aware of the policy; a policy that says employees are not to check email after 6 p.m. is meaningless if a supervisor routinely emails subordinates in the evening and expects a response.
Stuart Rudner is a founding partner of Rudner MacDonald, a Toronto-based employment law firm. He is the author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He can be reached at [email protected]. This article was co-written by Brittany Taylor, an associate at Rudner MacDonald.
