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Legal considerations of remote work across borders

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About the project

Since the outbreak of the COVID‑19 pandemic, remote work has become the “new normal,” and it is only expected to become more widespread around the world in the coming years. The newly virtual workplace defies national borders, and both employers and employees now work in a global and digital market. Employers working over the internet from a country other than the one where the employer is located, remote workers moving to another country and the growing number of “digital nomads” are all examples of the intersection between international borders and labour relations in modern society. With this increased mobility come complex legal considerations that can affect the protections of remote workers. Which law applies to their work contracts? Which authority has jurisdiction to rule on their rights? Such questions must be answered for effective worker protections, but those answers can be particularly difficult to determine given the diversity of regulations and the range of coordination (and lack thereof) among them.

This knowledge synthesis allowed us to identify the shortcomings and contradictions in the legal handling of remote work across borders, as the existing system’s response is fragmented and not well tailored to the reality of cross-border remote work. We reviewed the state of the law in Canada (Quebec, Ontario, British Columbia and Alberta) and the European Union regarding the following issues:

  • who is the competent authority to adjudicate disputes involving cross‑border remote workers
  • what law(s) apply to employer‑remote worker relations across borders
  • how minimum employment standards apply to remote work across borders
  • how remote work across borders interfaces with the criterion of “usual place of work” and proposed solutions to this issue

Key findings

  • In general, the rules regarding the jurisdiction of authorities regarding reports of work across borders give the worker the choice between the jurisdictions of their domicile/residence, their usual place of work and the state where their employer is headquartered or established. In the Canadian system, this flexibility can benefit employers who decide to sue workers with a place of jurisdiction other than that of their domicile, under the criteria of standard contractual attachments, which may impair the worker’s right of defence.
  • The “usual place of work” is the predominant way to determine the laws of which territory apply to a work contract in the absence of a choice of law clause and mandatory provisions protecting the employee when the parties have chosen the law of another jurisdiction; however, it does not adequately respond to the issues of remote work across borders.
  • This criterion is not representative of the socioeconomic context in which labour relations occur, because the physical place where a computer is located does not affect the provision of work, which could be connected to the place in which it will produce its effects.
  • This criterion encourages employers to relocate work offshore by using remote workers in jurisdictions abroad with lower protections. This benefits companies that want to avoid the mandatory standards of their country of origin, allowing them to reduce salary expenses and lower protection standards for remote workers. The global variation in existing standards can lead to a veritable race to the bottom as companies sidestep the most restrictive regulations and choose the law that provides remote workers with the least protection.
  • Private international law and labour law follow a geographical logic that does not mesh well with the dematerialization of the workplace. The Canadian legislation on minimum employment standards that we analyzed refuses to cover remote workers who work for a local company exclusively from another country or another Canadian province (with the exception of Quebec, if the worker is domiciled there).

Policy implications

  • The results of this knowledge synthesis will be made available to policy-makers so that they may be better equipped to assess the impact of the worldwide dematerialization of the workplace on the legal framework for labour relations. This information will be useful for educating decision‑makers on the need to work with all relevant stakeholders to consider these issues and the opportunity for legislative changes that take into account the international and virtual realities of remote work.
  • Given how complex it can be to understand and coordinate cross-border remote work rules, this synthesis aims to be informative to the stakeholders affected by this work model, in order to mitigate the legal insecurity resulting from such labour relations. There is already an imbalance between parties to a contract, and such insecurity can only tilt the scales further, to the employee’s detriment.
  • In the face of the current legal regime’s inability to adequately address these issues, policy-makers and labour law practitioners have a critical role to play in improving contractual practices to reduce the complications that can occur when work contracts are executed or broken, or executed remotely from another country or a Canadian province other than the one where the employer is headquartered. 

Further information

Read the full report

Contact the researchers

Naivi Chikoc Barreda, Assistant Professor, Faculty of Law, Civil Law Section, University of Ottawa: nchikocb@uottawa.ca

Stéphanie Bernstein, Professor, Department of Legal Science, Université du Québec à Montréal: bernstein.stephanie@uqam.ca

The views expressed in this evidence brief are those of the authors and not those of SSHRC, the Future Skills Centre or the Government of Canada.

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