How employers can avoid the legal traps of remote work
Remote work does not deprive employers of control. It only penalizes employers who fail to exercise it
Employers managing remote workers have stumbled into the same legal traps over and over again for much of the past four years. The courts have noticed — and employees have capitalized.
It does not have to be that way.
With a handful of disciplined practices, employers can reverse the trend, reassert managerial control and stop writing settlement cheques to employees who have never set foot in the office.
1. Put remote-work terms in writing — and make them conditional
The biggest employer blunder is treating remote work as a handshake deal. Courts treat it as a binding term.
Every employer should have written, signed remote-work agreements specifying:
- Remote work is not guaranteed
- The employer may alter or revoke remote status at its discretion with some specified amount of advance notice
- Office attendance requirements may change based on business needs
- Surveillance or productivity tools may be used (within reasonable limits)
- The employee must maintain a safe and appropriate workspace
If you don't include these provisions, a judge will assume the remote arrangement is permanent, and that any change is a constructive dismissal.
It is astonishing how many employers still ignore this.
2. Stop using surveillance tech you can't defend in court
Employers adopt monitoring software because they lack confidence in managing from a distance. But opaque and inaccurate tools are worse than none.
If you cannot explain:
- how the software works,
- what it measures,
- its error rate,
- and how it factors context,
then you cannot rely on it to discipline or terminate someone.
Courts are not impressed by mystery metrics.
If you must use monitoring tools, choose systems that are transparent, auditable and human-reviewed. And never rely on them as the sole basis for termination.
3. Document performance — or don't even think about terminating
Remote management is weak because managers don't document.
The fix?
Require every manager to maintain a performance log that includes:
- Clear instructions and deadlines
- Screenshots or attachments for remote tasks
- Dates of coaching conversations
- Records of missed deliverables
- Written warnings
Canadian courts expect a progressive discipline process. If you fire for cause without documentation, you will lose — and you will pay.
That is Employment Law 101. Remote work does not change it.
4. Be consistent. Judges punish arbitrary behaviour
Employers demand in-office attendance on Monday, backtrack on Tuesday, implement hybrid rules on Wednesday and reverse course the next month.
Courts view inconsistency as unreasonable.
If you change attendance policies, make sure:
- You communicate the reason
- You give appropriate notice
- The change is applied uniformly
- The business rationale is documented
If your policy looks whimsical, your case will be too.
It is fine, however, to determine which employees perform well remotely and permit them to do so, while denying it to employees who do not. But there must be total clarify as to what is permitted in every case.
5. Train managers — because most remote-work issues are managerial failures
Remote friction almost always traces back to one culprit: untrained managers.
They fail to supervise properly. They fail to communicate expectations and to apply discipline consistently. And they fail, spectacularly, to document.
Invest in proper training, including:
- How to assess remote productivity
- How to coach remotely
- How to record and escalate performance concerns
- How to conduct virtual "meeting minutes"
A small investment in training avoids expensive litigation later.
6. Don't promise what you cannot deliver
Employers keep telling employees:
"You can work from home."
"You will not have to come back to the office."
"This arrangement will be flexible."
Those statements become contractual promises, and judges enforce promises.
If returning to the office is even a remote possibility (pun intended), make that clear from the outset. Better yet, have employees sign a policy acknowledging that attendance requirements may change and the employer has the right to require their return.
The bottom line: remote work isn't the problem — sloppy management is
Courts are not biased in favour of remote workers. They are biased in favour of clarity, reasonableness and evidence.
Most employer losses stem from:
- Undocumented performance problems
- Unclear policies
- Inconsistent enforcement
- Indefensible surveillance tools
- Careless promises
Fix those and you fix 90 per cent of the legal exposure.
Remote work does not deprive employers of control. It only penalizes employers who fail to exercise it.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario and Alberta, and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada.