When working from home means working two jobs

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I have long believed that saying “I told you so” is bad politics and worse manners. However, I will allow myself this one transgression and try to forgive myself later.

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I provided a caution a very long time ago in these pages, and again repeatedly since — a caution that was disregarded by too many employers. Now, a ruling has just come down (as I warned it would) that will have a significant impact on Canadian employers and employees.

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When COVID-19 struck and offices were closed, employers had no choice, like it or not, but to permit employees to work from home. Even when companies were permitted to reopen their offices, it took a considerable amount of time before employers could organize their workplaces and recall employees. By then, there was no question that employers had the right to order employees back to work, and if employees refused, they had effectively resigned without any right to severance.

But that was a long time ago.

As I warned employers then, unless they wished working from home to become permanent, they had two choices: recall their employees, or issue them notices, preferably in the form of an agreement, saying they would be permitted to work from home for the time being, but making clear that they could be recalled at any time in the future, on, say, three months’ notice. This last clause would preserve the employers’ right to bring their workers back to the office. Otherwise, I warned, calling them back in the future would be considered a constructive dismissal.

Although this new case was not in the COVID context, the same principle applies. Lesley Byrd had been a manager for several years at Welcome Home Children’s Residence Inc. when her husband, who worked for the military, was posted to Europe and she obtained permission to work remotely from there. Nothing was in writing. One year later, her employer provided the ultimatum of either returning to the office full-time or resigning. She refused to return and was discharged.

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The court found that the right to work remotely became an accepted part of the terms of her employment and the employer had never established or communicated a right to recall her to in-person work. Therefore, she was found to be wrongfully dismissed.

An interesting aspect of this case was that, while overseas, Ms. Byrd found a second job with the Canadian Armed Forces and did not tell her employer. The court found there was no requirement to work full-time so that was not found to be cause for discharge.

But that is one of the problems for employers with working from home. In each of the two work-from-home cases I had pre-COVID, we learned during the discovery process that the employees did not want to return to the office because they were working other jobs on the side.

It is therefore not surprising that, corresponding with working from home, there is now a massive increase in employees taking second jobs. According to a recent study by H&R Block Canada, 28 per cent of Canadians have taken up gig work, with another 12 per cent considering doing so, up from only 13 per cent two years earlier.

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In a separate Harris Poll study for Express Employment Professionals from October 2024, one in three Canadian employees acknowledged pursuing a side hustle during regular work hours. Obviously, this is enabled by working from home with no supervisor looking over employees’ shoulders and monitoring their hours, let alone checking what they are doing.

Some employers are attempting to deal with this problem by making the number of days employees are working in the office part of the evaluation and bonus process. Deloitte recently announced such a measure.

There must be an exception for such policies, of course. Employees who have valid human rights grounds — i.e., childcare or disability reasons for working from home — cannot be penalized for doing so or it is a human rights violation. With respect to childcare and elder care accommodations, employees must be allowed a reasonable amount of time to make other arrangements, but such arrangements can be required.

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The cultural impact of working from home is increasingly being recognized. These are some illustrations of the types of problems endemic in working from home and why business leaders are increasingly decrying its contribution to Canada‘s productivity crisis.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada.

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