I’m working from home during COVID-19, what are my rights? Hours of Work

The COVID-19 pandemic means that more people are working from home. For many people, this happened suddenly due to health and safety concerns or emergency orders to close all non-essential businesses. As we settle into this new routine (at least for a while), you may be wondering: does working from home affect my rights or the rights of my employees?

We’ll be doing a short series of blog posts on workers’ rights while working from home during COVID-19. Our first topic? Getting paid for the hours you work! After all, the key component of an employer-employee relationship is that the worker gets paid for their labour.

HOURS OF WORK DURING COVID-19

While a lot of lifestyle articles published in the last month argue the merits of maintaining work-life balance while working from home or sticking to a routine, there’s a legal reason to do this, too.

Employers have an obligation to track an employee’s hours of work. The image of punching in on a timecard or logging in at a cash register may come to mind, but lots of us don’t work that way. Instead, we show up for our regular shift and leave when it’s done. The employer knows your hours, because they’re at the office or store with you.

Now that workers are at home, employer should discuss with them how to record their hours of work. Employees should consider keeping their own records even if their boss doesn’t ask them to, so they can be sure they’re being paid properly.

Why is it important to track your hours of work when working from home?

For most non-managerial employees, the law sets limits on how many hours a day or week an employee can work. It also requires that workers be given breaks during their shifts and sufficient time off between shifts. Employers who aren’t tracking their employees’ hours of work risk failing to comply with these break and rest requirements or paying overtime pay when it’s due. On top of being a violation of the Employment Standards Act that could result in orders to pay or fines, overwork isn’t good for workplace morale or employees’ physical and mental health.

Employees who are working extra hours may be accruing unpaid wages or unpaid overtime, which they could later pursue through a civil lawsuit or a complaint to the Ministry of Labour.

Tips for Employers new to working from home

• Clearly explain to workers in writing that they must continue to take breaks and to stop work at the scheduled end of their shift.
• Implement written policies about hours of work and share these with employees.
• Avoid emailing, calling, or texting employees outside of their scheduled hours of work (if inspiration hits you late at night, consider scheduling that email for delivery the next day).
• Avoid assigning so much work that breaks or regular hours of work are not realistic.
• Direct employees to record their hours each day. If you don’t have a system in place for this, consider using a shared outlook or google calendar or a check-in email at the beginning or end of a shift.
• Avoid tracking hours or productivity in a manner that is unduly intrusive of employees’ privacy at home. We don’t like this idea, for example. In my not-so-professional opinion, it’s creepy. Remember, your employees may live with roommates or family members who don’t work for you or they may simply wish to keep aspects of their personal life private from you/their coworkers. COVID-19 doesn’t give you a right to digitally barge into their homes or pry unnecessarily.
• Maintain regular contact with employees and remind them of your policies on breaks, rest time, recording hours of work, and overtime.
• Model appropriate work-life boundaries.
• Consider requests for parental status or disability-related accommodation and get legal advice when needed.

Tips for Employees new to working from home

• Keep a personal record of your hours. Some options that work for our clients include:
  • Writing your hours in your daily planner
  • Keeping a google calendar on your personal account
  • Sending yourself texts or emails to record your hours
• Consider discussing concerns you have about your schedule while working from home with your employer. If you do this, make a note for yourself after about how the conversation went- even if it was positive! Include the date of the conversation and who you spoke with in your notes as well as a summary of what you discussed.
• Keep copies of your paystubs, and regularly check them to confirm that they are accurate. If you normally get a hard copy of your paystub delivered at work, consider asking for an emailed version while you work from home or that it be mailed to you.

What about flexibility?

Sure. Flexibility is important right now, but the law continues to mandate that employers track employees’ hours of work and pay them for each hour worked, including premium rates for each overtime hour worked by eligible employees.

Permitting an employee to work different hours or take longer breaks because they are working from home, have childcare obligations, disability-related needs, or are just struggling right now doesn’t meant that those hours should not be tracked and paid. “Flexibility” is a benefit to employees when it is respectful of their rights as workers, not when it’s an excuse for employers to avoid the administrative hassle of appropriate record keeping.

What about “time theft”?

I don’t like that phrase! In general, employees have a duty to do work while they are being paid by an employer. Most employees are honest and hard-working, so this isn’t an issue for them. However, even in non-COVID-19 times when most of us attended at a physical workplace for our scheduled shifts, lots of employees were allowed to have a chat with colleagues or customers, nip out for a coffee or to grab a snack, or read a news article at their desk. Parents might get calls from school or a co-parent about a sick kid or a discipline issue. If that was permitted pre-COVID-19, equivalent minibreaks or urgent calls should be fine now.

At the same time, COVID-19 has placed new pressures on workers. For example, parents working from home now have to balance childcare and their job duties.  

It would not have been reasonable in most workplaces for an employee to bring their child to work with them for a month instead of sending them to school. Now it’s likely not reasonable for employers to demand that employees ignore their kids during their work from home shift. Docking pay for the minutes spent troubleshooting a kid’s online learning is not going to be worth the hassle, bad blood and potential complaints of parental status discrimination. But, it may also not be practical for an employee with many competing at-home duties to continue to be as productive as usual or have as many hours to devote to work as they usually do. In some cases, it may be appropriate to temporarily reduce an employee’s hours to reflect the amount of time they can reasonably devote to their job. In other cases, it may be unreasonable or even discriminatory.

If you’re an employer who is thinking of cutting an employee’s hours or pay because of concerns about their productivity during COVID-19, you should consider getting legal advice about the implications for the employee’s rights under their contract, workplace policies, or the Human Rights Code.

If you’re an employee whose employer is suggesting cuts to your hours or pay, or who needs to cut back on their work because of your COVID-19-related childcare or eldercare obligations or disability-related needs, consider getting legal advice to help you navigate these issues.

What are the rules about hours of work?

For most workers in Ontario, the Employment Standards Act sets out their basic rights at work. These apply equally to workers working from home and those attending at a physical workplace.

The Employment Standards Act generally requires that an employer pay at least minimum wage of $14.25. Some exceptional groups of employees who don’t have the right to minimum wage or for whom a lower minimum wage applies. For example, many professionals or students training to become professionals are exempt from the minimum wage. In addition, the student minimum wage for high schoolers is just $13.40.

The same law mandates that most workers get overtime pay after 44 hours of work per week.

It also provides that most workers:

• cannot work more than 48 hours per week.
• get at least 30-minute break every 5 hours of work.
• have at least 11 consecutive hours off per day.
• have 8 hours off between shifts.
• have 24 consecutive hours off per week or 48 consecutive hours off per two-week period.

You can find out more about these basic rights here:

• Hours of Work
• Overtime Pay
• Daily Rest

You can find out more about some key exceptions here:

• Exemptions or Special Rules

You can calculate overtime pay and check for compliance with other basic standards here:

• Employment Standards Self-Service Tool

Some of these basic rights are subject to exceptions for certain jobs or industries, others can be modified by written agreement or with permission from the government. Employees may have additional rights under their employment contract, workplace policies or their collective agreement if they are unionized. If you’re unsure, contact an employment lawyer or your union if you have one.

But I get paid a salary…

It’s a common misconception that salaried employees don’t have the right to overtime pay or limits on their hours of work. A related misconception is that calling some one a “manager” in their job title exempts them from overtime pay. In Ontario, the real question is whether the employee is truly managerial or if another exception applies. If not, a salaried employee or one with a manager title is no different from an employee paid an hourly wage. The Ministry of Labour’s self-service tool helps guide you through the basics of this issue. If you’re unsure if you’re managerial or just salaried, contact an employment lawyer for advice.