Time Makes Fools of Us All: Employer Successfully Claims for Time Theft

It is a fundamental principle of employment that an employee will perform work for the employer during the hours that they are paid. But with growing numbers of employees who work without supervision, often flexibility in setting working hours, particularly those working remotely, it is all too easy to take advantage of their situation and spend paid working time on personal matters or even another job or business. This practice is commonly known as “time theft”. While difficult to prove in most cases, the recent decision in Besse v. Reach CPA Inc., shows that electronic monitoring systems for employees working on-line has potentially made it easier for employers to prove time theft.

In Besse the employer had terminated the employee for cause because of alleged time theft. The employee worked remotely from home and prepared timesheets for the hours that she worked. The employer installed time-tracking program TimeCamp on the employee’s work laptop, which recorded the time that the employee spent on her laptop and, importantly, differentiated between work-related and personal activities. After scrutinizing the employee’s timesheets and TimeCamp’s activity logs, the employer found that the employee had submitted 50.76 hours that could not be accounted for as working time by TimeCamp. While the employee attempted to explain that those hours were due to significant time working with paper copies (i.e. offline), the Tribunal reviewed the printing activity recorded by TimeCamp and found that the printing volume could not justify the amount of unaccounted hours. Additionally, other data did not support the explanation the employee had uploaded enough work to explain the missing hours.

The Civil Resolution Tribunal found that the employee had engaged in time theft and that the employer had just cause to terminate their employment on that basis. As a result of the time theft, the Tribunal awarded the employer a total of $1,506.34 based on the 50.76 unaccounted hours.

Takeaways

The following are some takeaways for employers who have concerns regarding time theft:

• Consider using electronic monitoring to record employee productivity and activity. The type of monitoring will depend on the employee’s work. For example, GPS monitoring may be more suitable than computer monitoring for employees who drive between different locations. Generally speaking, such monitoring should only be used for a particular employee where there are grounds for suspicion of time theft or, if to be used more broadly, there have been repeated incidents of time theft.
• It may be necessary to cross-reference electronic monitoring data with other records to show time theft. For example, in the case above, by comparing the employee’s timesheets with her activity logs, including downloading and printing, the employer was able to disprove the employee’s explanations for the TimeCamp discrepancies.
• If an employer accumulates evidence an employee is being dishonest about their work hours, the employer should give employees an opportunity to explain the discrepancies before imposing discipline. Electronic monitoring records may not provide the complete picture of how working time is spent and there may be a plausible explanation for the discrepancies.
• Employers should ensure that their electronic monitoring and collection of the resulting data complies with applicable privacy legislation. Employers may wish to have an electronic monitoring policy to address those concerns. In Ontario, such policies are mandatory for employers with over 25 employees. In BC, where the Personal Information Protection Act applies to private sector employers, such employers do not require consent to collect and use employee computer use data broadly, but must give notice of it to affected employees except when investigating suspected time theft.

If you want more information on electronic monitoring, time theft, or just cause termination, you can contact us at:

Geoffrey Howard:      ghoward@howardlaw.ca

604 424-9686

Sebastian Chern:         schern@howardlaw.ca

604 424-9688