Employment Law in the Virtual Sphere

Technology and the expanding e-workplace

Employment Law in the Virtual Sphere

The pandemic propelled the movement of employees to home offices at an unprecedented level. Current trends suggest that this shift, once thought to be a temporary solution to pandemic problems, may be here to stay for many workplaces, at least in a hybrid form. However, nascent legal problems are beginning to catch up with this pandemic-borne solution, raising complicated questions about the expanding scope of the “workplace” and the virtual realm, and an employer’s management of it. As legal precedent arises from onceunprecedented times, a cautious approach seems wise for employers working with a virtual workplace.

The expansion of the workplace through technology is not completely new. Cases as far back as 2016 identified that the workplace extends to the world of modern-day social media, including an employer’s own Twitter account: Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (2016), 270 LAC (4th) 341. At that time, an arbitrator in Ontario held that an employer had a positive obligation to take steps in response to online harassment directed at its employees, providing clear direction to employers that they could not ignore employee mistreatment, even when perpetrated by strangers on the internet.

Taking its point broadly, the Ontario case could be also said to stand for the proposition that an employer seeking to further its objects through the use of technology should not ignore the consequences on its employees. This, as it turns out, is a terrific lesson for employers today.

Giving up office space can be an attractive prospect for employers to reduce overhead costs (and employees avoiding the commute). However, failure to stay connected with a remote workforce risks disengagement, lost productivity and time-theft, among other things. Employers might look to technological advancements to address these risks, but that use must still take into account the interests of the people it affects. Governments are clearly moving toward legislating protections for home offices, with Ontario leading the way recently by enacting laws directly addressing employer-monitoring and employee disconnection through the “Working for Workers Act” in each of 2021 and 2022.1

With a virtual workplace, employers bear responsibility for employee health and safety in areas for which they hold little control. For example, a recent case in Québec found an employee injured in the course of lunch in her own home was sufficiently connected to the workplace for workers’ compensation to apply: Air Canada v. Gentile-Patti, 2021 LNQCTAT 6978. While this issue is only beginning to be litigated, employers should look to implement health and safety policies specifically applicable to home offices.

The virtual workplace has also led to some alarming failures in the realm of dismissals. For example, in late 2021, an American CEO made the news following his dismissal of approximately 900 employees during a group Zoom meeting, seconds before they were locked out of the employer’s computer systems altogether.2 It has long been acknowledged that employees are most vulnerable at the time of the termination of the employment relationship, with the act itself labelled (in some circumstances) the “capital punishment of employment law.” While there may be nothing intrinsically wrong with a respectful virtual dismissal meeting, one would hope that few advisors endorse the elimination of an entire workforce through the equivalent of the delete key.

The pandemic age has proven that businesses can adapt rapidly to changing situations, particularly where the health and well-being of employees is at stake. The future may put that adaptation to the test across workplaces for which physical boundaries are a distant memory.

1. Working for Workers Act, 2021, S.O. 2021, c. 35 (Bill 27) & Working for Workers Act, 2022, S.O. 2022, c. 7 (Bill 88) |

2. “‘It was callous,’ says man laid off with 900 employees on Zoom call,” CBC News (December 7, 2021), online |

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