Clauses to Include in Remote Work Arrangement Agreements to Avoid Constructive Dismissal Claims
With the continuing benefit of remote work, employers must carefully structure remote work arrangement agreements to avoid legal pitfalls, particularly constructive dismissal claims. The case of Byrd v Welcome Home Children’s Residence Inc. highlights the importance of clearly defining the terms of remote work arrangements. In this article, we analyze the case and outline key clauses employers should include in remote work agreements to protect their rights and minimize legal risks.
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Case Background
In Byrd v Welcome Home Children’s Residence Inc., the Ontario Superior Court of Justice – Small Claims Court found that the Plaintiff was constructively dismissed when her employer required her to return to in-person work after she had worked remotely from Europe for over a year. The Court ruled that remote work had become an essential term of her employment, and since the employer had not reserved the right to recall her to in-person work, requiring her return amounted to a repudiation of the contract.
This decision serves as a critical reminder for employers to explicitly outline the conditions of remote work arrangements in their employment agreements to avoid similar claims.
Analysis
The Court’s ruling was based on the principle that significant unilateral changes to an employee’s working conditions can constitute constructive dismissal. In this case, remote work had become a fundamental aspect of the Plaintiff’s employment, and the employer’s failure to specify its right to require in-person work led to legal liability.
To mitigate such risks, employers must draft remote work agreements with clear, enforceable clauses addressing key aspects, such as defining remote work as a privilege rather than a right, reserving the right to require in-person work, setting geographic limitations, clarifying performance expectations, and outlining policies on equipment, expenses, and liability.
Key Takeaways for Employers
- Clearly Define Remote Work Terms: Avoid ambiguity by explicitly outlining the conditions under which remote work is permitted, modified, or revoked.
- Reserve the Right to Require In-Person Work: Specify that remote work is not a permanent entitlement and that the employer can mandate a return to the workplace with notice.
- Set Geographic Boundaries: Prevent international remote work arrangements from becoming a legal risk by clearly defining where employees may work remotely.
- Communicate Performance and Compliance Expectations: Ensure employees understand productivity standards, response time expectations, monitoring, data security responsibilities, and compliance requirements.
- Address Equipment, Expenses, and Liability: Define employer-provided equipment, employee expense reimbursement policies, and liability limitations for injuries sustained while working remotely.
- Review and Update Agreements Regularly: Periodically assess and revise remote work policies to reflect evolving business needs and legal considerations.
By implementing these clauses in remote work agreements, employers can safeguard their rights while maintaining flexibility in managing their workforce. The Byrd case underscores the importance of proactive contract drafting to prevent constructive dismissal claims and other employment disputes.
Ariane Laird is CEO & Founder of ConnectsUs HR. Contact her directly from the Inquiry Type drop down menu.
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