Ep 8: Hybrid Work's Legal Labyrinth: Navigating with Tara Vasdani of Remote Law Canada

Top Legal Considerations for Remote Work Dynamics

In episode 8, I sat down with Tara Vasdani, managing partner and founder of the law firm Remote Law Canada, to discuss top legal considerations for remote work dynamics. During the global pandemic, she discovered that many organizations didn’t have the correct policies and procedures in place to help them implement remote work while following the correct legislations and regulations.

More and more workers were working as nomads moving across the globe or working outside of their employer’s jurisdiction. Vasdani explained there were many situations where no one knew how employment law would respond, so she started helping these organizations draft enforceable remote work policies and health and safety checklists, as well as other key documents to help them legally operate a remote, flexible, or hybrid team. 

The Rise of Constructive Dismissal Claims in the Digital Age

Tara Vasdani shared how organizations went remote or hybrid but did not have the proper policies and procedures. The result was a huge rise in constructive dismissal claims, which is what happens when the circumstances of employment change in such a way that the employee can interpret it as either their job duties/responsibilities have permanently changed or a toxic work environment has been created that allow them to resign.

“By allowing a lot of employees to work remotely but not having a policy in place that said they could recall the employee at their will, the moment they tried to recall the employee, the employee could argue that remote working was a new term of their employment.” - Tara Vasdani, founder of Remote Law Canada 

Vasdani explained that organizations were running into these problems by allowing employees to work remotely but not having a policy in place that said they could recall the employee at their will. Therefore, employees who were recalled to work could treat it as a constructive dismissal and were entitled to their termination or severance pay.

Vasdani explained that as companies embraced hybrid work, they started to consider some of the long-term impacts of operating in that way. The increase in the use of tech made it so they had to draft remote work policies and procedures, privacy policies, and cybersecurity policies that previously didn’t exist in the workplace. 

Differentiating Between Independent Contractors and Employees

Tara Vasdani explained that distinguishing between independent contractors and employees is a common challenge for organizations. The law determines whether someone is an independent contractor or an employee based on certain factors, regardless of what the written agreement says.

In Canada, for example, case law determines whether someone is considered an employee based on factors such as control over work hours, job duties, responsibilities, and work equipment and tools, regardless of what the written agreement states. If an individual displays certain factors or meets certain factors (e.g. the employer provides all of the tools and equipment to complete the jobs and responsibilities, the employer sets the work hours), they are an employee.

“The biggest myth is that employees are not independent contractors and independent contractors are not employees based only on what the written agreement says. Organizations must make sure that the actual method of work is being carried out in accordance with what the laws says.” - Tara Vasdani, founder of Remote Law Canada 

Vasdani encouraged organizations to understand their employer obligations and whether they’re meeting the requirements to enforce an independent contractor or employee relationship. If not established correctly, employers may end up in a situation where when they let the worker go, they have to pay termination or severance pay.

How To Protect Yourself as an Employer of Record

Dealing with tax implications when employees travel and work in different jurisdictions was another prevalent issue that Tara Vasdani brought up. There’s a lot of tax implications that come with having employees working in different jurisdictions, especially for a certain period of time.

As such, employers are increasingly using employer of record services to meet their obligations when hiring globally. However, Vasdani warned that companies need to educate themselves on local and global laws to protect themselves in the remote work world.

For example, Vasdani encountered a case where a global employer of record became liable for termination pay when a fixed-term contract was terminated early by a third party. After that incident, they redrafted the employer of record’s policies to better protect them if the same incident occurred again.

Debunking Common Myths About Hybrid Work Law

Tara Vasdani explained that it’s common for companies to not know how to protect themselves especially with certain myths and misunderstandings that circulate the hybrid world with respect to some of the legal obligations. Organizations have certain policies and procedures that apply to fully in-office employees and fully remote employees, but they haven’t accounted for hybrid employees.

Vasdani warned that organizations have to be especially careful when employees work from a co-working space or from a different jurisdiction because that changes the organization’s obligations and requirements. For example, she had a case where an Air Canada employee working from home tripped and fell down the stairs. The employee sued Air Canada for failing to provide her with Worker’s Compensation, and because Air Canada did not have a specific remote work policy, the judge ruled in the employee’s favor. 

“Companies can do better by having the proper policies and procedures in place to ensure the viability of their workforce.”- Tara Vasdani, founder of Remote Law Canada 

From her experiences, Vasdani encourages companies to have proper policies and procedures in place to address the occupational health and safety requirements of hybrid work. This includes having remote work policies, hybrid remote work policies, and in-office policies to ensure the viability of the workforce. She recommends that companies also have policies and procedures in place to address cybersecurity concerns. 

The Role of AI: Legal Aspects and Remote Work

In the remote work industry, AI has exploded in its impact, helping clients, employees, and contractors create tailored solutions and streamline their work. However, Tara Vasdani warned that reviewing all of the content that AI generates is still necessary. She cited a case where a senior lawyer in Ontario used Chat GPT to assist him with drafting a brief only to discover that the cases cited were not accurate.

Even so, Vasdani sees AI as a vital tool for increasing efficiency and delivering timely solutions to clients. She explained that she uses AI at her firm for legal research, collaboration with clients, case management, and documentary discovery. AI tools also help her with document review, flagging non-standard clauses in agreements, and generating legal research memos based on inputted facts.