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CCCA61_044,046,047,053.qxd:CCCA_V1No2_Col-CorpLaw-V1.qxd 02/07/2008 06:21 PM Page 44 Labour & Employment Law Workin’ overtime… A recent wave of class actions highlight the contentious issue of overtime pay. anadian employers should be paying per week at specific times and 60 hours tellers, personal and commercial bankers Cclose attention to how they administer or more per week during peak sales peri- and account executives working at retail overtime pay. Recent class action claims ods. No overtime pay was provided branch offices across Canada. Under the brought against three large employers – the to the plaintiffs, according to the state- federal statute, employees may be entitled Canadian Imperial Bank of Commerce ment of claim. It is also alleged that to overtime pay if they work in excess of (CIBC), the Bank of Nova Scotia and Michaels knew or ought to have known 8 hours in a day or 40 hours in a week. Michaels Stores – illustrate the risks. The that, by classifying employees as The plaintiffs allege that class members lead plaintiff in the CIBC action is one of “salaried,”“supervisory” or “managerial,” were required to take on heavier work- its front-line customer service representa- it would avoid liability for proper pay- loads than could be completed within tives. The CIBC class action involves a ment of overtime pay in accordance with standard working hours. As a result, it claim for $600 million in damages and is various employment standards statutes is alleged that unscheduled overtime thought to be the largest overtime class across the country. hours were often needed to attend to action in Canadian history with a potential In Ontario, employers are not required other work matters, such as staff and new class size of nearly 10,000. product meetings, or the In Michaels, the lead plain- review of unbalanced managers. The Globe and “ Ensure that employees are day. The plaintiffs allege accounts at the end of the tiffs are one of its store man- agers and one of its assistant overtime. It is also alleged Mail reported that a class accurately reporting overtime that they were not paid for hours and that they are being action lawsuit is now being appropriately compensated. that the employer actively brought against the Bank of discouraged employees Nova Scotia on the basis of from submitting claims for unpaid overtime pay. None ” overtime hours. of the allegations have been proven in court. to pay a premium to employees whose Guidelines By way of background, legislation in all work is supervisory or managerial in While the validity of the claims against Canadian jurisdictions requires the pay- character. Such employees may perform CIBC and Michaels has not been estab- ment of premium rates for “overtime” non-supervisory or non-managerial tasks lished, the claims themselves highlight the work (i.e., work performed in excess of a on an irregular or exceptional basis with- need to be proactive. The following prescribed threshold) in some circum- out changing their status. However, guidelines should assist to ensure compli- stances. The thresholds and exemptions labelling employees as “managerial” or ance with overtime obligations: vary somewhat between jurisdictions. “supervisory” when in fact such titles There is, however, a “managerial” exemp- bear little resemblance to the actual job 1. Ensure that employees are accurately tion in most jurisdictions. functions of employees so labelled, will reporting overtime hours and that they not be sufficient to bring them within are being appropriately compensated. Managerial exemptions – Michaels the exemption. Prepare and communicate a policy that It is alleged in Michaels that the plaintiffs describes those who are eligible for over- routinely worked in excess of 44 hours Culture – CIBC time and the process for authorization per week performing mainly non- The CIBC claim is brought on behalf of and reporting. supervisory/non-managerial tasks, and current and former non-management, that they were required to work 50 hours non-union front-line employees, including continued on page 53 44 CCCA Canadian Corporate Counsel Association SPRING 2008