March 27, 2023

Can employers eliminate working from home completely?

After unceremoniously laying off about 50 percent of Twitter’s workforce, Elon Musk announced this week that he plans to abandon the company’s “work from anywhere” policy and mandate a full-time return to the office for all its employees.

It raises an important question about the future of telecommuting in North America on the heels of a looming recession and historic labor shortages, which experts say could ideally put workers in the driver’s seat to negotiate their terms of employment.

“Employers are definitely at risk of having wrongful termination claims for dismissal when they make fundamental changes (in policy) to their employees,” Toronto employment lawyer Mackenzie Irwin told on Friday.

According to Irwin, if the job is announced as remote work and if remote work is included in the employee’s contract or company policy, it can be argued that working from home counts as an agreed employment relationship. .

In these cases, employees who are fired for not returning to the offices or who are fired because of a policy change can sue for constructive dismissal, which means the employer is not honoring the original contract with the employee.

This can lead to a stronger severance or termination package or, in some rare cases, to a renewal of employment.

But for workers without a written order who were working remotely due to unprecedented circumstances like COVID-19, there is no “legislation” to protect those who refuse to return to the office, Sundeep Gokhale, a Toronto-based labor lawyer, told on Friday.

“However, we’re starting to see a very strong movement for employees to make this purposeful employment contract when they take on a new job,” he said.

“I think we all see it as one of the first questions employees ask (in a job interview), like ‘Is there a flexible work environment’ or ‘How often do I have to come into the office?'”

Telecommuting has grown in popularity in Canada, with many willing to quit if forced to return to the office full-time, according to an October online survey by financial technology firm Hardbacon.

It revealed that more than 80 per cent of Canadian telecommuters would quit their jobs and look for new ones if their employer asked them to return to the office five days a week.

Another survey of workplace preferences by the Environics Institute for Survey Research found that an increasing number of Canadians have become accustomed to remote work since the start of the COVID-19 pandemic and want to keep it as an option indefinitely.

“I think it would have been reasonable to think that after two and a half years, people would have had enough and wanted to come back. And we’re just not seeing it,” Andrew Parkin, one of the report’s lead authors, told in September.

But many Canadian companies have started to put their foot down and continue their efforts to get workers back into office buildings.

Instead of instructions for volunteers to return to the office, employers mandate participation in the office through company policies. Some Bay Street businesses and law firms appeared to be leading the charge, issuing memos mandating a certain number of days per week in the office in September.

Law firm Osler, Hoskin & Harcourt LLP said in a statement that its offices will transition to a hybrid work model on Sept. 6, with most employees working three to four days a week in the office, in accordance with operational requirements and local public health guidelines. .

Royal Bank of Canada (RBC) is encouraging staff to visit the office more often, in what could be a sign that major Canadian banks are following their American counterparts and cutting back on telecommuting.

RBC spokesman Rafael Ruffolo told BNN Bloomberg via email that most office jobs under hybrid arrangements would require two to three work days each week.

“It’s not just going to happen organically,” RBC president and CEO Dave McKay said in a LinkedIn post in September. “We are asking Teams across the bank to start meeting more often in person to work and collaborate.”

“There’s an energy and spontaneity that comes from relationships that I don’t think technology can replicate.”

While experts are conflicted about the fate of working from home, they believe unions can provide support to negotiate better contracts for workers.

“Unions can definitely negotiate to include remote work in workers’ collective bargaining agreements,” Valerio De Stefano, professor at York University and director of Canadian Innovation, Law and Society Studies at Osgoode Hall Law School in Toronto, told on Friday. .

“Even if remote work is not included in the collective agreement, but carried out by the employer, the trade union can claim that the employer cannot cancel the insurance unless they have demonstrable business reasons for doing so.”

Employers also cannot cancel policies regarding working from home without giving employees reasonable notice, Irvin says, and claims that often even a week’s notice is not considered reasonable after two years of remote work.

While there’s no hard and fast rule or formula, best-practice employers should move workers into the office slowly and early and start with a hybrid model, he said.

Parkin warns that employers with a rigid approach may find it harder to retain staff than more flexible ones.

“While I can’t say whether (permanent telecommuting) is sustainable or not, I would say it’s inevitable,” he said.

With files from Canadian Press and CTV News

Are you being asked to return to the office but would like to continue working from home? Share your story by emailing us at [email protected] with your name and location. Your comments may be used in a story.

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