Do not make assumptions with managerial overtime pay ⋆ LegalMattersCanada

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Workers are taking notice

She says workers are taking notice, as illustrated by the former coffee store supervisor who started a class action claiming systemic job misclassification exempted managers from overtime pay. The class action has yet to be certified.

There have been other notable overtime cases recently. An international travel agency reached a $7-mllion settlement in a proposed class action after it was claimed the company’s Canadian branch breached provincial employment standards and failed to fairly compensate its agents for overtime.

Earlier this year, Ontari o Superior Court ruled a bank had breached the overtime obligations prescribed by federal labour law, finding its “unlawful overtime policies and hours-of-work recording practices were systemic or institutional impediments. That is, they were system-wide and they impeded class member overtime claims that were otherwise compensable.”

Low says while there are federal and provincial laws covering overtime when it comes to salaried managers, the regulations are not always clear.

Supervisors are in a different category

Hourly employees are entitled to time-and-a-half pay after a 44-hour workweek under Ontario’s ESA. However, supervisors fall into a different category.

“In Ontario, regulation 28 5 s .01 8(b) has an exemption which says that a person whose work is supervisory or managerial in character may perform non-supervisory, non-managerial tasks on an irregular or exceptional basis,” Low says. “But when you look at the actual text it is more nuanced.”

She says it comes down to how a manager’s duties are performed.

For example, if a coffee chain manager is regularly doing all the other work of his regular underlings “that’s probably no longer a character of being managerial or supervisory.”

“Once you figure out whether or not the character of the employment is managerial or supervisory then you still have to determine whether the employee is performing non-supervisory or non-managerial tasks,” she says. “Is that task being done on an irregular and exceptional basis or is it part of their ongoing responsibilities? That’s where it gets a bit complicated.”

Unfortunately, few cases have dealt with the issue, Low says.

Assumptions are made

“I think that is because once people assume you have the title of manager you don’t get overtime. For whatever reason it just seems to be accepted,” she says. “Many of the decisions that do exist are coming out of the Ontario Lab our Relations Board. They don’t seem to get nearly as much publicity as civil court judgments.”

Lowe says she doesn’t believe the manager tag is being used to intentionally deny workers overtime, “there’s just been some widespread misunderstanding.”

Know the regulations

She says for employers, awareness of labour codes is essential.

“Some analysis should be done,” Low says. “If employers have questions or concerns, they should be working with an employment lawyer who has experience with this issue and can guide them through some of the indicia to protect them from an unpaid overtime claim.”

She says workers should not assume they are no longer entitled to overtime if they take on a manager’s role, even if they have signed an employment agreement.

“Just because it’s in a contract does not make it necessarily binding,” says Low. “The court cannot enforce a contract that violates the Employment Standards Act.

“It is often assumed that if you didn’t meet one of the very narrow exceptions in the ESA that you didn’t get overtime,” she adds. “However, there is a further step in the analysis. You’ve got to go to that next step to determine whether or not you meet the standard.”