Throughout the past year, the main change many employers have had to put in place is shifting from a physical workforce to an online one.
Since remote work is being utilized more now than ever before, it has raised some legal questions about provincial employment legislation and jurisdiction. For example, if an employee’s workplace is in BC, but they live and work remotely from Ontario, which employment standards act governs them?
Although each situation may vary and must be addressed on a case-by-case basis, it is generally the case that the employee will be governed by the employment standards laws of the province they live and work from.
While this is often the case, each province also has specific rules on employees working outside of their employer’s jurisdiction.
This blog will give an overview of the way each province deals with these jurisdictional issues.
It is important to keep in mind that much of the rules on interprovincial workers were originally established for physical work between the provinces, such as truck driving. At that time, permanent remote work had not been fully contemplated.
The Ontario Employment Standards Act (ESA) will apply to workers located outside the province if the work they do is a continuation of work that originated in Ontario. Section 3 of the ESA states that the legislation applies to the employment relationship if:
- the employee’s work is to be performed in Ontario; or,
- the employee’s work is to be performed in Ontario and outside Ontario, but the work performed outside Ontario is a continuation of work performed in Ontario.
Other aspects, such as where the job contract was signed or where the worker lives, are not relevant to establishing the ESA’s jurisdiction as it applies to workers outside of Ontario.
The only relevant factor is the continuation of work. An example of this is a salesperson who lives in Ontario but often works in other provinces. Since the work originated in Ontario and is only being “continued” in the other provinces, the worker would be governed by the ESA.
Alberta’s Employment Standards Toolkit for Employers says that if an employee is working from another province, that province’s employment standards legislation may apply.
It also specifies that when an employee is working outside Alberta for an Alberta-based company, the Employment Standards Code (ESC) will govern the employee depending on the specific circumstances and the nature of the employment agreement. Due to this:
- the law that applies is the law that is intended by the parties, whether explicitly stated or implied.
- even if the work is done entirely outside Alberta, the ESC can govern the employment relationship if it is stated in the work contract. Or if there is supporting evidence of the parties’ intentions to have it governed by same.
If the intention of the parties can’t be decided through a contract or other documentation, a test has been established by the courts to determine which legislation will apply. This test has many aspects, some of which are:
- where the work is done;
- whether the employer is based in Alberta;
- where the hiring took place; and,
- where the payment of wages occurs.
The legislation in British Columbia is mostly silent on this matter. But the case law says if the employment contract does not specify which province’s employment standards legislation should govern, BC’s Employment Standards Act (ESA) will apply if there is a strong enough connection between the employment and the province. Some factors that can determine this connection are:
- whether the business is located in BC;
- whether the employee lives in BC; and,
- whether the terms of employment require the employee to work in other provinces as well.
The Quebec Labour Standards Act (LSA) applies to the employment relationship:
- when the work is done across multiple provinces (both in and outside Quebec) but the employee’s employer has an office location in Quebec; or,
- when the work is done solely outside of Quebec, the LSA applies if the employer has a work location in Quebec and the employee lives in Quebec.
Alternatively, if the company does not have a work premises in Quebec, the employment standards legislation that applies is that of the province where the company operates. The only relevant factor when determining the governing power of the LSA is if the employer is in Quebec.
It can be difficult to determine which employment legislation is applicable when employees are working and living in a different jurisdiction than their employer.
With permanent remote work on the rise, the future will likely bring a change in the existing legislation. Implementation of new laws may provide more definitive answers to these jurisdictional questions.
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