Have you ever taken a leisurely afternoon break from work to run an errand? Had a Netflix show streaming during the workday, perhaps?
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Taking personal time while working was the central focus of a recent British Columbia decision at the Civil Resolution Tribunal, where the tribunal ordered a woman who was terminated from her job to pay her former employer over $1,500 as a reimbursement for “time theft.”
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In the case of Karlee Besse vs. Reach CPA Inc (“Reach”), Ms. Besse was employed as an accountant at Reach from October 2021 until her termination for cause on March 29, 2022. Ms. Besse worked remotely and following her termination sued Reach for unpaid wages and severance pay.
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At the Tribunal, tribunal member Megan Stewart found that in February 2022, Reach installed a time tracking program called TimeCamp on Ms. Besse’s work laptop to help better manage client files. According to the decision, TimeCamp records when and for how long a client document or file is open on an employee’s computer. TimeCamp can help an employer distinguish between work and non-work activities. For example, “if Ms. Besse had a streaming service like Disney Plus” open on her laptop, TimeCamp would record how long it was accessed for and Reach would classify the activity as personal.
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In March of 2022, Ms. Besse met with her employer to discuss some of her files that Reach said were over budget and behind schedule. Reached subsequently placed Ms. Besse on a performance improvement plan.
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At a later meeting, Reach told Ms. Besse that it found 50.76 unaccounted hours that she had reported on her timesheets but did not appear to have spent on work-related tasks. The tribunal decision found she was given an opportunity to provide further information regarding her timekeeping, however, she declined the opportunity to correct her time entries. Then Reach terminated Ms. Besse for cause.
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Not only did the tribunal uphold the termination for cause but it ordered Ms. Besse to pay Reach for the 50.76 hours it found she did not work but was paid for — at her rate of $27.50 an hour.
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This case is groundbreaking and signals a troubling trend emerging from some remote workplaces.
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Generally, time theft is an argument that employers use sparingly; reserved for only the most egregious cases of employees abusing the system. An employee submitting timesheets while on vacation could be an example.
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Even more unusual is the seeking of repayment for alleged time theft. Employees generally only assert time theft, at all, to support a termination for cause. Here, the fact that Ms. Besse actually had to pay her employer $1,500.00 for time theft is novel and potentially unprecedented.
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What this case does signal is that using software to manage remote employees remotely is becoming commonplace.
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The tribunal accepting evidence from TimeCamp on the productivity of an employee means the legal system is opening the door to more stringent employee oversight and changing the way employers define productivity.
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Of course, many of us don’t complete all of our work during the 9-5. Sometimes we work in the evenings or on weekends. Sometimes we breeze through tasks while listening to a podcast or the latest Sam Smith single.
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Employers should rarely consider alleging time theft against an employee. If remote work is accepted in your workplace, find ways to build productivity through better employee interaction rather than relying on employee monitoring software that may not track the nuances of employee productivity.
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Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.
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The content of this article is general information only and is not legal advice.
