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Where are your remote workers working from?

In the age of remote work, many employees have the freedom to work from home. However, employees who work remotely may also decide to move elsewhere in Canada or travel and work from abroad (i.e., be “digital nomads”). Employees may even do these things without informing the employer.

Today’s technology means that a lot of work can be done remotely, from wherever there is an Internet connection. However, this can create legal and security risks that employers need to take into consideration when assessing how to handle or address various remote work situations.

Moving to another jurisdiction

In employment law, typically the legislation and employment standards that apply are those for the jurisdiction in which the employee primarily performs the work. For example, if an employee typically works from their home in Ontario, then in most situations, Ontario employment laws would apply, even if the employer is located in British Columbia. A temporary work trip to another jurisdiction usually does not change the applicable employment laws.

Different jurisdictions have different employment standards – and different obligations for an employer. The vacation, holidays, or other statutory entitlements that an employer provides for employees in one jurisdiction may not comply with the laws of another jurisdiction.

With remote work, this may create a legal risk if a remote employee is not upfront about where they reside when being hired, or if they move to another jurisdiction.

Similarly, an employment contract (and termination provision) may face enforceability issues elsewhere – especially if it was drafted specifically for the original jurisdiction.

Note that federally regulated employees may have a bit more leeway in this regard as Canadian federal employment laws would apply regardless of where the employee resides in Canada. However, there would still be concerns if an employee were to move abroad.

International considerations

When an employee works from abroad, particularly if they stay in one location for a longer period, there is the concern that the laws of wherever that employee is located would become applicable.

This could impact potential employment entitlements, and could also potentially trigger tax consequences (for both the employee and the employer) and other corporate obligations (e.g., corporate registration, etc.).

Working while travelling

When an employee works remotely while travelling, there is a possibility that the destination country (or countries) will not permit a visitor to work while there as a tourist – even if it is remote work for a foreign company. Or it may be unclear whether or not such work is permitted while in the country as a tourist.

While it may be considered relatively “low risk” to perform remote work while in a country on a tourist visa because it seems unlikely that the destination country will actually find out that an employee is doing so – it is still a risk that an employer may want to address (e.g., in a policy) if employees are permitted to travel while working remotely.

As a practical matter, working while travelling may also introduce challenges such as time differences from other employees and clients, as well as potential difficulties ensuring access to a stable and secure internet connection.

Digital security risks

There can be digital security risks when an employee connects from an unknown Internet connection. While this certainly applies to a travelling employee connecting from around the world, it can also apply for a worker who usually works from home but decides to work from a coffee shop one day.

While this type, or level, of risk may be a greater concern for employers or industries requiring a greater degree of security, it is certainly something to assess and address (e.g., in a policy) if it is a concern.

Lessons for employers

Employers who permit employees to work remotely should consider having workplace policies or terms within employment contracts that address the above factors and considerations.

For example, employers may want to include policy or contract provisions which state that employees are expected to primarily perform their work within a specific jurisdiction (e.g., Ontario).

Policies may also address the employer’s stance on employees relocating to another jurisdiction or working while travelling abroad, and the process(es) that may be involved when an employee requests to do so. An employer may also want the policy to indicate that employees are responsible for complying with any work authorization or visa requirements of any travel destinations.

Further, employers may want to consider whether they need a policy that addresses the use of various Internet connections (secure vs. unsecure, public vs. private, etc.). Different employers may have very different needs with respect to the level of digital security required for the work being done.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.