Future of Work: The Legal Implications of a Remote Workforce | Tara Vasdani

ABOUT THIS EPISODE

Tara Vasdani, Principal Lawyer of Remote Law Canada, talks about some of the legal implications of hiring remote workers and digital nomads, as well as some of the things organizations and employees can do to protect themselves while working remotely.

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Ceci [00:00:16]  Hi, everyone and thank you for tuning in to the Allwork.Space Future of Work podcast. My name is Ceci Amador and with me today is Tara Vasdani, principal lawyer and founder of Remote Law Canada, who for the past two years has been nominated for Canadian Lawyers’ top 25 Most Influential Lawyers as a young influencer and changemaker in the legal industry. She has also been featured in Forbes magazine. Tara, welcome. 

Tara [00:00:47] Thank you. Thank you so much for having me. 

Ceci [00:00:50] It’s our pleasure. I wanted to start by asking what moved you to create remote law Canada? Like, did you have an experience working remotely to do a lot of people reaching out, approaching you about how to handle remote work? Because we know it’s kind of like still very uncharted territory for a lot of people. So what motivated you? 

Tara [00:01:14] Absolutely. And it’s a really good question because, you know, right now we’re facing a time where a lot of law firms are struggling with transitioning to remote work. So my story is a little bit unique. About a year ago, I was sitting at home and I turned on YouTube and I saw that The Economist had put out a documentary on digital nomads. So, you know, I was really curious about what this digital nomad was, and all I could see were photos of Australia, Bali. You know, you name it, every exotic destination possible. So I started to watch the documentary. And before I knew it, I learned that, you know, there was this type of worker that was traveling and working remotely. Now, one of the biggest distinctions that I learned as I dove further into it, was that there is a difference between a digital nomad and a remote worker. 

Tara [00:02:08] So a digital nomad is somebody who travels globally and works typically outside of the jurisdiction of their employer, and a remote worker is someone who generally stays within the jurisdiction of their employer but works from home. So going back to The Economist, I saw this documentary, you know, immediately called up my partner and said, I want to do this. I want to travel and work where we please month to month. And after that, I ended up reaching out to one of my contacts, a Canadian lawyer, because I started thinking about some of the legal implications of this type of worker. So, you know, if the employer is in Ontario or somewhere in Canada and the worker is working in either Bali or Australia or Japan: what happens if there is a breach of the employment agreement? But even further than that, what happens if there is a breach of some sort of consumer arrangement? So, you know, if the end user is in a different jurisdiction and the employee is in a certain jurisdiction, how are these issues dealt with? And even further than that, what are the tax implications that come with having a remote or a digital nomad employee working in a different country? So from there, you know, I wrote the article and all of a sudden I found that I was completely entrenched in or involved in this community. So I was all of a sudden connecting with remote work thought leaders across the globe. 

Tara [00:03:43] And very quickly I realized that this was a movement in and of itself. There were workers globally from every type of workplace and every industry imaginable pushing for remote work. And the underlying reason varied; it was either flexibility, more time with the kids, you know. In a law firm context it seemed to empower females and women more generally. And so all of these things were kind of going on globally and there was a huge push towards adopting this type of workforce. So as I got more and more involved, I, you know, having been a legal tech champion for a while, really exploring the use of artificial intelligence and legal tech and, you know, going as far away as possible from paper based files and paper based work, all of that kind of put together eventually led me to opening up my own firm almost a year ago now. And, you know, I haven’t looked back ever since. I absolutely love being a rural lawyer. I love the fact that I can represent employees across the province and I can assist with legal issues that arise in different jurisdictions. And I love that I’m part of this movement that is really focused on empowering workers and empowering employees. 

Ceci [00:05:13] That’s a wonderful story, and I like how you touched on the difference between remote workers and digital nomads, because that’s something that ver the past few years, people have used the terms interchangeably without realizing that there are different implications for each. Like you mentioned, tax purposes or employee rights, labor rights. And so I guess one of the things that I find really interesting is as a remote worker myself is how do people navigate it? And I’ve found that there’s not a whole lot of information, like for tax purposes. For example, I know certain countries have agreements where if you’re working for, let’s say, a company in Germany, but you’re an American, you can not decide, but there are ways so that you don’t have to pay taxes in both countries and just one. But there are other countries where that’s not really the issue. So it’s hard for people to find valuable information about what they can do. And especially because I feel like a lot of remote workers and digital nomads end up in freelance or contractor positions rather than full time contracts. So I want to ask you about what are some of the main things that employers and employees of remote teams need to have in mind when they’re accepting a remote offer? 

Tara [00:06:39] Absolutely. So, you know, I agree with you. I think that there is a bit of a lack of resources, and it’s simply because certain countries or jurisdictions have adopted remote work and digital nomadism a lot more quickly. And sometimes it’s because of simply because of their geography. You know, warmer locations and destinations seem to see a higher influx of digital nomads. And sometimes it’s simply because, you know, you’re dealing with a country that either is late to the game in terms of technology or simply has industries that are not incredibly tech based, whether they’re more physical or they’re more agricultural. There just isn’t a lot of space or work, quite frankly, for remote workers or digital nomads to operate there. So, you know, I definitely agree there’s a lack of resources. But I encourage remote teams to really take advantage of this structure because it allows us to employ a much wider talent pool and it allows you to start operating potentially in different jurisdictions across the globe. And in terms of some of the things that they can do to either safeguard themselves or their workers, you know, the first two things that I always turn to are having an extremely robust remote work policy. So at Remote Law Canada, we’ve been drafting those policies for quite some time now and I’m actually finding that now as some employment lawyers are kind of responding to this pandemic, where a lot more employees are working from home and a lot of their employers are dealing with employees who hadn’t previously worked from home. But now, if they want to continue running their operations, their employees will be working from home. They’re remote work policies aren’t very robust and they’re way too reactive and not proactive. So they’re very much made in emergency settings and in emergency response. And so having a robust remote work policy that protects the employer and the employee from not just, you know, strange times like this or unprecedented situations like the COVID-19 situation that’s happening across the globe now, but something that’s much more long term and that protects, you know, the employee from all of the same situations that could arise in a physical workspace. 

Tara [00:09:16] And that means, you know, adapting your insurance policies to the remote arrangement, focusing on employee benefit programs for remote employees. You know, sometimes I coach companies to offer what’s called a technology benefit or a technology allowance or even, right now, nobody’s using coworking spaces, but eventually, when we do get back to that, a coworking space allowance. The tradeoff is that you’re saving quite a bit on real estate fees by not operating a physical workspace. These are benefits that you can offer to employees to purchase the tech needed to complete the work. And you know, simply by allowing your employees to work remotely, you create autonomy in the employee and a work life balance that, you know, certain situations require. So right now with COVID-19, in Ontario, we’ve got school closures and allowing your employees to work remotely allows them to meet a lot of their child care obligations. So when you’re drafting that policy, you really want to be contextual. You want to include how employees will communicate with one another, how they will communicate with you. You want to include what the hours of work will be and, you know, definitely think about certain amendments that need to be made during COVID-19 or otherwise. So if they’ve got a school pickup and drop off schedule for their kids, allow them to set their hours of work and you’ll find that they are much more productive when they are working at times that their energy levels are high and they’re not distracted, than if you were to enforce a work schedule on them. So you know really ensure that the policy is robust and definitely including in there if you are an employer, ways to terminate the arrangement or amend or modify the arrangement. So the policy is extremely important. Insurance is important. And you know, with insurance, you also want to think about employment insurance and certain health and wellness benefits that you offer through group insurance policies for your workers. But also, you know, the insurance that comes with their own homes, whether it’s contents insurance or home insurance policies. So that’s the remote work policy. And then, of course, you know, having a very, very, very robust and all-encompassing employment agreement. 

Ceci [00:11:50] So I have a question about this. So you’re talking about all of this, some benefits and allowances that the remote workers should have or that should be included in the policy. Should these benefits be the same for full time workers versus those that are freelancers or on contract positions? How can companies leverage all of the different workforce arrangements that currently exist in a remote setting? 

Tara [00:12:13] Absolutely. So I think one of the best “conseille” or advice I always give to employers is when you’re approaching benefit programs for remote employees, you want to think about it in the same manner as you would with an in office or a physical workspace employee. So, you know, that’s approach number one. I would treat it the same way that you would treat a full time, part time or freelance employee if you were operating in the office. And then to take it a step further. You know, in Canada and in Ontario, specifically, independent contractors and freelancers are not entitled to benefit policies or programs. If they are, you blur the lines between employee and independent contractor and you could find yourself paying quite, quite a bit of CRA penalties and back taxes for improperly classifying that employee. So freelancers and independent contractors are out. They set their own hours. They bring their own tools to the workspace and they set project deadlines and start times, etc. They also purchase their own benefits and they pay their own taxes. So freelancers and independent contractors are a separate entity of themselves. When you’re dealing with full time and part time employees, one thing to remember and you know, I spoke about it this morning with the Ontario Bar Association, specifically in the context of COVID-19. But even in any context and going forward, you want to exercise empathy. And so when you’re dealing with a full time or a part time employee, you need to remember that the situation is very different than when they’re in the office. Vacation entitlements and personal leave entitlements, especially in today’s time, can be used to allow employees time off to take care of their kids or take care of their sick family members or meet a lot of the new demands and new obligations that are arising from the spread of COVID-19. But aside from that, when you’re dealing with full time and part time employees, really the rule of thumb should be offering them the same benefit packages and the same types of benefits that you would offer if they were in the office. And one thing that we encourage our employers to do is to organize, you know, virtual lunch and learn to really focus on their professional development, organize virtual coffees. And one of the most fun ones is organizing virtual events. So, you know, having an event the same way that you would when they’re in the office. And if they’re part time, you know, I would suggest that the invite gets circulated to all employees. And that way, you know, you’re creating an inclusive culture and you’re avoiding some some potential discrimination lawsuits or what have you. From a quantity perspective, it would really be, you know, in Ontario, at least, it’s very it’s a numbers game. So your benefit qualification would depend on the amount of hours that you work. So it’s a pretty simple formula from there. 

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Ceci [00:15:26] Great. Thank you. And I think that’s that’s a good kind of rule of thumb to provide the same benefits that you would provide to in-office workers. But then in this regard,  freelancers and contract workers, usually they are less protected in terms of employee employment, termination and those kinds of arrangements. And so what are some ways that these types of workers and professionals can protect themselves? What about the contracts that they sign? What are some of the things that should be given to any remote worker, regardless of the employment contract that they sign? 

Tara [00:16:06] So, you know, a good way to get around a lot of the autonomy that independent contractors have to exercise and freelancers and to kind of create some camaraderie and community is to, you know, when you’re organizing those virtual events and things like that, reach out to those individuals as well and have them join and be part of the team. So, you know, if you’ve got a law firm and you’ve got certain law clerks that are operating on a contract model or are working on a contract basis, check in with them in the same way that you would check in with your employees and other lawyers and other clerks at your firm. And the same goes for any type of freelancer or independent contractor. When it comes to protecting themselves, I encourage freelancers and independent contractors to reach out to their communities. They will find that there are significant communities that are there for them in their specific industry. And, you know, securing benefits packages for yourself. So, you know, operating my own law firm, I  am an entrepreneur and I also need to have my personal benefits packages. But, you know, it’s really about creating a sense of community. And as an independent contractor or a freelancer, you’ve got a lot of leverage to control the relationship in the way that you want. So as a freelancer and an independent contractor, you’re able to fashion the arrangement as you see fit and as is best for you. So I would leverage that and really ensure that things are in the best position they can be for you and, you know, create your own community. But don’t hesitate to reach out to the employer to continue to be a part of some of their events. 

Ceci [00:18:01] And I think that’s great, and I think in Canada, there are already some programs like insurance and benefits that are aimed for freelancers and independent professionals, which I think is great. And I still believe that that is a relatively untapped market. And then you were saying how COVID-19 is currently kind of like forcing a lot of organizations to encourage their workers to work remotely. And I don’t think this is necessarily just a temporary change; I think that following the pandemic, a lot of people will choose to work from home and a lot of organizations who will see the many benefits that allowing their employees to work from home are. And so what are some things that employers who wish to kind of like start transitioning more aggressively towards remote work, keep in mind right now, in terms of legal requirements. 

Tara [00:19:02] Yes. So, you know, I have to say, first and foremost, Ceci, I agree with you. I think that while it might not be the full fledged push to remote work where, you know, once this is all over, everyone is working remotely and you know, we have won the fight. I think that the future of work actually came much sooner than I thought it was going to come. And I think that there will be significant changes. Employees that were not previously working remotely and are now 100 percent or even 50 percent working remotely, will have expectations at the end of this all to work remotely at least some of the time. And so organizations need to be prepared for that. From a legal perspective, it’s really about having the correct tools in place. So, you know, as I’ve spoken about the remote work policy in the employment agreements or independent contractor agreements, but further than that, you know the health and safety of the workers. So right now, especially one thing that we train our employers on is really ensuring that the safety of the workspace is set up properly so that the employee doesn’t run into any potential issues where either they could end up disabled or some sort of physical injury could occur. And, you know, the warning being that just because they’re working from home doesn’t mean that they can’t file a workplace injury claim. And so you really, really want to be careful there. And also, you know, setting up ergonomic assessments of the place to ensure that some sort of physical injury or disability doesn’t occur down the line because they are not set up properly. So ensuring that you’re focusing on the health and safety of the space and of the worker. And then another huge thing is, focusing on, and COVID-19 especially makes this vital, is focusing on the mental health and well-being of your employees. So, you know, you and I were chatting earlier and we had spoken about how we’re very used to working remotely. But the anxiety that has come with this global pandemic has changed that landscape. And I can confidently say that it doesn’t feel the same as it did prior. And I think that goes for remote workers across the board. So checking in with your employee and really, really ensuring that you make this a good mental space and a good mental transition. And coupled with that comes exercising empathy as much as possible, I think will be the key to successfully implementing your remote workforce. And, you know, coupled with that is really acting as a leader and keeping the lines of communication open as much as possible, you know, providing your employees with the tools that they need to successfully work remotely. So if you’re a law firm, for example, that’s transitioning to remote, you know, you have huge client confidentiality and privacy issues that you agree or safeguards that you need to put into place before your employees are working remotely. So a way to circumvent that or to to accelerate it is to provide your employees with the tools that they need to operate. And, you know, ensuring that you’ve got the proper VPN setup and that you’re coaching your employees on some of the phishing attacks that are going on right now that are related to COVID-19. And, you know, really just being determined to make it work and being as open as possible. There is a huge potential here for companies that are transitioning to remote to see greater talent enter their workforce, to see profits skyrocket and for them to be at the forefront of efficiency. And if you can leverage that, you will be highly successful in a time when you know there’s going to be an economic downturn across the globe. So it’s really being, as you said, aggressive and, you know, ensuring that your workers are cared for and taken care of. 

Ceci [00:23:16] Amazing. Thank you so much, Tara, for joining us today. And just to recap a little bit of what we talked about, it was basically some of the legal implications of hiring a remote workforce and some of the things that employees and employers alike should keep in mind when they’re thinking about creating or joining a remote team. So thank you Tara again, for joining us today. I don’t know if there’s anything else you would like to add. 

Tara [00:23:40] No. That is awesome. I’m so thrilled to have been here, you guys rock, I really love what you’re doing. And I wish everyone health and safety in these uncertain times. 

Ceci [00:23:52] Thank you, Tara. And thank you, everyone, for tuning in once again to the Future of Work podcast. Remember, you can also tune in on Allwork.Space, Apple Podcasts, Spotify, Google Play, Stitcher, TuneIn Radio, and Podbean. 

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