Extended breaks and late starts could add up to time theft, lawyer says
Are your employees really working or are they secretly binge-watching TV shows on the clock?
Research from Tubi, an American streaming service, reveals that half of Gen Z workers admit that they put off work to finish binge-watching TV shows.
The other half? They don't want to head back to the office because they prefer to stream their TV shows while working.
Tatha Swann, managing partner at Swann Law, says this can be considered time theft.
“You're representing that you're performing your duties for the employer for a paycheck during set hours, and if, in fact, you're not doing that for part of the time, it's viewed quite seriously by employers,” she says.
“Usually, time theft occurs when an employee receives pay for hours they did not actually work,” says Nora Chahine, an employment lawyer from Ellen Low and Co.
Time theft, she says, can come in various forms, such as employees arriving late to work, taking extended breaks, and leaving early without authorization or justification. It could also include employees conducting personal tasks during paid time, such as online shopping, scrolling through social media, or watching shows.
While these actions can seem minor, she says, they can accumulate to a point where employers face substantial financial losses.
At the same time, there is a ‘caveat,’ Chahine says, when it comes to defining time theft. “[Employers] have to manage the expectations of the employee. So, if it's one time ... I don't think it's going to trigger time theft,” she says.
In certain situations, where performance issues stem from family-related responsibilities, employees should not necessarily be penalized, even if they did not formally request accommodation in advance, she explains. Employers should always view situations from an Ontario Human Rights Code lens.
Chahine says that time theft should be based more on how it links to performance. “As soon as it starts impacting the productivity of the worker or their performance, that's when it crosses the line,” she says.
Identifying time theft can be challenging. According to Swann, gaining awareness of when it is happening is often "half the battle," as many employers may discover time theft has occurred after terminating an employee.
She shares an example from a case she worked on involving an employee who was terminated without severance. During court proceedings, the employer discovered the employee had secretly held another job for a year while still employed.
Some think poor performance or underperforming can be proof of time theft, but that's not necessarily the case, Swann says. That’s why it’s important for managers to look at the warning signs, which can show employees missing deadlines or check-ins.
“[Employees] keep being called by the manager and they never seem to be answering... They'll always call back 15 minutes later, hinting that maybe they're not there at home and rushed back and called back,” she says.
One way to track if time theft is occurring—and in some ways prevent it from happening—is through electronic monitors, a tool that was on the rise during COVID-19, Swann says.
This software can track anything from keystrokes to login times, along with what applications and software are being used, says Swann.
With monitors like this, “employees are less likely to go and take a two-hour lunch because it's going to show, "she says.
According to Ontario’s Employment Standards Act, if employers have more than 25 employees, they can electronically monitor employees, provided they have a written policy on monitoring in place.
Employers' monitoring policy should include:
The three types of electronic monitoring that employers can use are:
Monitoring can happen during and after work hours, according to the ESA. Employers would also need to add those details to the policy.
If monitoring shows employees using work computers for non-work purposes during set hours, Chahine says employers can first give a written or verbal warning.
“If the performance is greatly impacted, and you have documents to prove it, and your monitoring policy is up to date, and the employee was aware of it, then you have more chances at court to be successful in a termination for cause," she says.
However, Chahine stress employers need to be clear with their policy. The policy should explain how employees will be monitored, and how information will be used to ensure compliance. It also should “outline disciplinary measures for violations and detail procedures,” she adds.
Instead of watching employees every day, Swann says employers should “evaluate what employees are doing based on results” and question what productivity really means.
In certain situations, monitoring can affect the culture and trust between employers and employees, she adds.
In workplaces where there are no set check-out times and employees are consistently performing at a high level throughout the day, monitoring can create feelings of distrust, she says. In these cases, employees might also feel it’s reasonable for occasional personal time during traditional work hours to be overlooked, given the quality and volume of work.
“If employers instead are looking at breaking projects down into smaller and smaller deadlines—smaller benchmarks to hit with more regular check-ins—then you’re requiring employees to do little pieces of work within smaller timelines... [making] it harder to be doing extended personal tasks,” Swann says.
