Employer wins money award from dismissed employee for theft of time

A Canadian employer, Reach CPA (“Reach”), prevailed in a dispute against a dismissed employee, Karlee Besse, relating to her misrepresentation of hours worked.  The civil tribunal, a Canadian judicial body, found that Besse logged 50 hours of workplace time when she in fact had not worked them.

Based on online reporting from NPR’s Juliana Kiim, Besse, following her termination, brought a judicial claim against her former employer for being terminated without “just cause.

In response, Reach argued that the firing was justified because Besse, a remote worker, had engaged in time theft of approximately 50 hours.  To substantiate that claim, Reach relied on data gathered from a time-tracking software product called TimeCamp.  TimeCamp records what employee’s computer records are accessed and for how long.  Simultaneously, such workplace productivity solution is able to capture non-work activities, such as use of a streaming service, an employee may access from a laptop while work applications are also being accessed.

The Canadian labor tribunal was apparently not swayed by Besse’s argument that she found TimeCamp difficult to use and she could not cause the software to differentiate between work and time spent on her work laptop for personal use.  Reach employees like Besse are permitted to access their workplace computer during off hours, although the employer determines what constitutes work and non-work activities.

During the proceedings, Besse reported allocating substantial quantities of time reviewing paper documents.  However, she didn’t report such activity due to her belief that Reach “wouldn’t want to hear that.”  TimeCamp can track printing activity although Reach reported no evidence that Besse printed a large volume of documents.

In resolving the dispute, the Canadian tribunal rejected Besse’s claims and allotted 30 days to Besse for reimbursing Reach for her time theft and other associated costs.

For observers of the contemporary labor landscape, the case involving Reach and Besse point to important lessons to be learned as both employees and employers navigate post-pandemic workplace issues.

Employees face hard choices:  to continue to allow workers to engage in a purely remote working environment, to permit “hybrid” arrangements where employees may split a work week between remote and in-workplace time or to insist that workers return full time to the office.

The preference that employees return to the office on a full-time basis without any remote hours is understandable.  Employers want as much visibility as possible as to the activities of their employees, both to identify employees who may be cutting corners from a time perspective and to set their sights on high-performers for promotion and advancement.

Software products like TimeCamp provide the beginnings of an understanding of the scale of the work efforts of a remote employee.  But, endeavors involving intellectual activity should not be analogized to pushing out prefabricated widgets from a factory, as there is both a qualitative and a quantitative aspect to them.  Thus, the “TimeCamp” solution to remote employee management could be shown to be somewhat artificial and not able to capture the actual contributions of workforce members to a given enterprise.

For employees, the “Reach” story illustrates the importance of understanding the systems monitoring them.  They need to have a comprehensive knowledge of both their strengths and vulnerabilities.  In this sense, a software product like “TimeCamp” becomes just like another workplace manager.  For the employee to succeed, she or he must become acquainted with both the foibles and capabilities of this new virtual supervisor and then to master them.

For employers, “Reach” may seem like a win.  But, any victories may prove illusory in the long run.    On one hand, the case holds out the promise of employers acquiring monetary awards from their employees for amounts to be recovered on theft of time-related (and perhaps other) grounds.  However, at the same time, employers may ask themselves whether they will be able to attract quality people if they know that a manager might bring a legal claim against them, prevail and collect damages if and when their time in the workplace comes to an end.

Are you confronting a workplace legal issue, either as an employee or as an employer?  If so, reach out to Castle Garden Law’s White Plains Employment attorneys for a consultation.