Blurred Lines: Privacy and Expectations in a Modern World
Healthy workers set boundaries between work and life, but as the lines between home and work become more blurred, that’s getting more difficult.
It’s currently most obvious among the many new remote employees, who have been working from a home office or dining room table since March. For much of that time, some were trying to teach their children school lessons, too. For others, childcare was and is unavailable for their energetic toddlers. Pets are wandering into Zoom meetings. Work and home life are so inextricably mixed up right now that many people are never quite sure which mode they’re in at any given time.
Before a pandemic forced remote working onto employers, many viewed flexible work arrangements with some skepticism, said Carolynn Ryan, chief human resources officer at BC Hydro. “Some managers were skeptical around productivity. There’s been a real mind shift for leaders around how this is going to work and how it should work.”
Setting Office Hours at Home
“In the past, the expectation was that employees would work their normal hours, just at home,” Ryan said. “But now things have shifted because of COVID. Employees might have children or elderly parents at home, too — we’re all being asked to be more flexible around working hours.”
For example, Ryan said, managers were directed to be more flexible if an employee had childcare issues. Now, the organization is shifting back to more regular routines with boundaries to ensure employees end their day at a reasonable time.
“We also ask employees to set boundaries with their families — for example, if they’re wearing their headset, they’re at work. It’s good to set up a routine to mark the end of workday, too; take a walk, get some exercise, do something that indicates work is over for the day.”
Ryan said the key to managing remote work is “communication between managers and employees, so that management expectations can be met but employees have that balance that they need.” When setting up a remote work arrangement, she added, it’s important to build in an out clause, so an employee can return to the workplace if it’s not working.
Laws Still Apply
Employees’ hours of work at home shouldn’t be any different than they were when they worked in the office, but it’s on the employers’ shoulders to clarify expectations about hours of work and other logistics, said Melanie Vipond, a partner at Gall Legge Grant Zwack LLP in Vancouver who works in labour and employment, human rights, privacy and administrative law.
“Hours of work can depend on the profession — some employees are expected to work as many hours as it takes to complete the job,” Vipond said, adding, “They might be exempt from overtime hours according to the Employment Standards Act, but you have to be careful. Just because they’re exempt from charging overtime, doesn’t mean they’re not entitled to be paid at their regular rate for all the time they’ve worked, as per their employment contract.
“Many employers have wanted to let their employees be more flexible in recent months, and a lot of jobs can be more flexible than people thought. But keep the legislation in mind. Employers need to balance empathy with being taken advantage of. It can work when both parties are very candid with each other, the same as they would be if they were in the office.”
The Canadian Advantage
Siva Chandran Ramakrishna is the human resources officer for School District 48, Sea to Sky. “I’ve worked with remote employees in past positions, and had colleagues, peers and supervisors working remotely all the time,” he said, including extensive experience with remote working for multi-national companies in various parts of the world. He said that workers in Canada are better protected than many.
In many places, Chandran Ramakrishna said, “Work never ends, because your organization or supervisors take into account that you are at home and always available and can always log back in to finish off the work. They let you know that you’re replaceable, so if you resist, then you’re putting your job at risk. You have to bend to the employers’ terms.”
When he first started working remotely as an analyst, he recalled, the job called for eight hours per day on paper, but it always took at least 10. Around the eighth hour each day, the supervisor would call to ask if he was finished the work, claiming the client wanted it right away.
“Regardless of what the contract said, employers always expected more and encouraged employees who worked extra hours, warning those who stuck to the agreed-upon hours that they were racking up negative points on their employee record.”
Sometimes, supervisors would question the validity of a vacation claim, or ask employees to postpone taking vacation or sick time. In many jurisdictions, “It’s more important what the employer believes, not what’s on the paper,” he said.
Now, he added, “I’m proud to be in a country where they [employers] actually follow the policy they have on paper.” He said that his current position is the first one he’s had where he’s able to see his family at a reasonable hour every day.
It’s up to newly remote workers to clearly mark boundaries between work and personal life, Chandran Ramakrishna added. It can be a major adjustment, but conversations between the employee and supervisor help clarify things and make the situation better.
Working Out Logistics
Those who don’t work remote may look longingly at colleagues who are able to schedule their office hours around personal needs, such as medical appointments or parent-teacher meetings.
“If you need to take half an hour here because your kids need you and you can make it up later, that’s okay,” Ryan said. “But if you’re teaching them all day, that’s likely no longer compatible with full-time work and you should ask if you can move to part time or take a leave of absence.”
Lawyer Scott J. Marcinkow, a partner at Harper Grey LLP, has prepared many policies and remote work agreements for companies that have chosen or been forced to implement remote work arrangements. This year, “There weren’t that many requests for remote work agreements or policies; I don’t know if that was because employers were scrambling to just do it and keep operating, or if they were finding lots of information about remote work issues online and from other sources.
“They also maybe didn’t realize how long we’d be in this situation,” he added. He said more businesses should have a written policy in place, setting out employer expectations in relevant areas. Agreements can also address security issues — is the employee using their own computer or a company-issued one? How secure is their internet connection?
“There’s a difference between employees paid by hour and those paid by salary, too,” Marcinkow said. “For hourly employees, the best thing the company can do for the benefit of both parties is be explicit about what it expects.”
Although there’s less concern about overtime hours with salaried employees, expectations should be clearly acknowledged. For hourly employees, he said, emails sent outside of regular hours are a clear sign that they’re working extra hours, for which they may be entitled to overtime. It’s important for employers to watch for such signs so they can change the behaviour or be ready for unexpected claims.
“Fundamentally, expectations shouldn’t be different when working from home than if an employee is working from the office,” Vipond said.
She, too, points to the potential for liability for claims of unpaid hours of work, citing the 2020 decision in the Ontario Superior Court of Justice that the Canadian Imperial Bank of Commerce (CIBC) was required to pay customer service employees for many hours of unpaid work put in over several years. The onus in such situations is on the employer to prove the employee(s) did not work the extra hours, she said. It’s a reminder of the importance of keeping good records, particularly in remote working situations.
Zoom, Zoom, Zoom!
Online meetings are the new norm, complete with children or pets making unplanned guest appearances.
Ryan sees Zoom as a great leveller. “We’re getting more glimpses into who people authentically are outside work. One fun thing has been to see the beards — they’re like playoff beards, but that’s part of who we are and there’s lots of space for that.”
Dress codes depend on the organization and the purpose of the meeting, Chandran Ramakrishna said. Often, formal business dress is required if meeting with clients, but more casual attire is acceptable if the employee is only talking to internal employees.
Lines Have Been Blurring for Longer Than You Think
The lines between home and work have been blurring for longer than COVID-19 has been part of our world, although perhaps in a less obvious way. As individuals share more of their personal lives online, or other people share it for them, their private actions are sometimes on a collision course with their work lives.
“I always find it really interesting — I teach at UBC on an adjunct basis as well — that most individuals live online now, but still expect privacy,” Vipond said. “It’s an interesting dichotomy; all this information is online, but unlike old water cooler talk, it has permanency.”
While social media is a great tool for recruiting employees because of its wide reach, Marcinkow noted, issues can arise if an employer is checking out employees’ or potential employees’ social media posts.
“Generally, for the employer, it’s dangerous from a privacy perspective to do that; even though the information is out there. You could be gathering things about religious beliefs, gender identity or sexual orientation and family status from what you see on the internet and the employee can make privacy complaints, which could potentially give rise to discrimination allegations if you gained information about various protected characteristics from their social media accounts.
“It’s also a practical challenge that you don’t even know if you’re looking at the right accounts because there are so many with similar names, or if the information is accurate. I think there are lots of employers doing it, but they may not realize there are those pitfalls.”
BC Hydro considers checking employee social media accounts as looking “without consent, as the unauthorized use and collection of private information,” Ryan said. “If we’re told there’s an issue, we might go looking for it in the public domain.”
Private Posts Not Necessarily Private
While employees should only be posting on social media on their own time, they still have a responsibility not to speak on behalf of the company or draw a nexus between who they are and where they work that throws negative light on the employer.
Likewise, posting offensive comments can have ripples. “Sometimes other employees come up and say, ‘I’m so upset about what I saw that I’m having trouble working with this person now,’” Ryan added.
According to Vipond, if the information is publicly available, prospective employees run the risk that employers will check it out. “Some of the content may be relevant and an employer can be concerned; for example, if the prospective employee has a publicly available Facebook page with contentious views that could reflect on the company’s commitment to diversity. An employer could be legitimately concerned about racist, sexist or misogynistic comments, both for the organization’s reputation and their obligation to provide a workplace free of harassment.”
She added that it’s often coworkers who expose colleague’s improper posts, such as the one in which an employee showed off the elk that he shot on the day he was supposedly out sick. “Employers can use that,” Vipond said, “but there are all kinds of privacy concerns about whether the information is accurate. Privacy laws require employers to ensure information is accurate.
“We encourage employers to have a social media policy so it’s clear what the expectations are and what the consequences can be for failing to meet them.”
She urges HR practitioners to check out the guidelines published by the privacy commissioner if planning to do background checks on social media.
Compliance and communications teams often work hand in hand to monitor social media to ensure nothing is being posted that negatively affects their company’s brand or reputation, Chandran Ramakrishna said. “So, if an employee posts something that affects their brand, it’s a problem.”
Caught on Camera
It’s becoming a common scenario—someone is taped being racist or sexist on their own time, the video goes viral and they lose their job as a result of the bad publicity for their employer.
Chandran Ramakrishna recalls one instance in which someone posted a video of an employee expressing road rage, on his own time but wearing a company-branded shirt he wasn’t supposed to wear outside his job. Because the video so clearly identified the employer, it tarnished their brand.
In another example, an employee who had sworn a project needed another week to be completed, and then posted on social media that he was on vacation for three days in that additional time. One of the client’s employees saw it, reported it and the client cancelled the contract and sued the service provider.
Many corporations have clear policies that employees cannot have personal relationships with clients outside work, which includes not being friends on Facebook. These precedents are set to make sure the personal relationship doesn’t impact a project in any way in the future, Chandran Ramakrishna said.
Firing an employee for off-duty conduct is legal in Canada, if there “‘is sufficient nexus with the employment relationship’ and the information is contrary to employment policies, company ethics or guidelines,” Vipond explained.
Marcinkow added, “It often comes down to the key question of whether the employee’s conduct is harming or harmful to the employer’s reputation.” Examples include posting derogatory comments about their employer on social media or being charged with a criminal offense that harms the company’s reputation. “Especially in this ‘cancel culture’ where someone says something online and there’s a movement to have that person affected or fired, it’s important to have a policy in place stating what impact such things can have on employment,” he said.
Some employers are satisfied with the increased remote work, while others are bringing people back on site with enhanced safety precautions, Marcinkow said. Some may be looking at whether they can reduce their rented space in the long term to reduce costs, while others are looking at the work environment and the degree of collaboration it encourages.
“Personally, I value interaction with colleagues and clients, so I’m not convinced it’s a sustainable improvement to have people work from home all the time. I’m concerned about what effect that would have on the culture of the team and the organization over time.”
“At the beginning of the pandemic, we all responded in a herculean way,” Ryan said. “We sent about 6,000 employees home within a day or two, which we wouldn’t have imagined was possible. There was a feeling of ‘all hands on deck,’ and there was some flexibility about how we’d move through this together. Now, employers are starting to ask more questions about things like WorkSafe — what obligations do we have that employees have a safe workplace, without invading their privacy? What does it mean in the long term, around ergonomics or domestic violence in home — how do we keep employees safe but still maintain that boundary between work and home for physical and mental health?
“We’ve been reflecting on the great resilience employees and employers have shown, but now we’re saying we need to start setting up some boundaries, because we might be in this for a while.”
It’s time to start clarifying those blurred lines.
Interested in learning more about HR Law?
CPHR BC & Yukon will be hosting the Legal Symposium 2021 Series live online. Tune in for three excellent symposiums, for one great price. Expert speakers include:
- Jennifer Kwok, Overholt Law LLP
- Preston Parsons, Overholt Law LLP
- Scott J. Marcinkow, Harper Grey LLP (quoted in above article)
- Melanie Samuels, Singleton Urquhart Reynolds Vogel LLP
- Veronica Ukrainetz, Ukrainetz Workplace Law Group
- Pamela Connolly, Ukrainetz Workplace Law Group
- Melanie Booth, Kane Shannon Weiler LLP
Symposium dates are January 28th, February 4th and February 18th form 9:00 AM to 1:00 PM.