Date: 2009
Author: Daniel A. Lublin
Publication: Metro

After hours BlackBerry use may spur overtime lawsuits

When does the workday begin and when does it end? This is the question being put to judges across the country as lawsuits for unpaid overtime make their way through the courts. And it will continue to garner attention as our reliance on the electronic workplace, replete with BlackBerrys, home offices and remote access, ensures that the office no longer has traditional borders.
Pay for overtime worked is governed by differing employment standards legislation across the country. In Ontario, for example, while there is no daily overtime pay requirement, employers must pay time and a half for employees who work in excess of 44 hours in any week. While each jurisdiction has its own exceptions, such as managerial employees, professionals, such as lawyers and accountants, and IT employees, most workplaces are required to pay overtime to the majority of the workforce.
Although many overtime eligible employees are not specifically asked to work any extra time, the legislation is uniformly interpreted as placing the onus on employers to disprove these claims. This raises two issues. First, where an employer permits an employee, even indirectly, to work beyond the maximum amount of hours, it will be liable to pay him or her overtime pay. This is so even if the employee was not specifically requested to work after hours. By permitting an employee to stay at work or providing remote access to the workplace after hours, it has essentially allowed him or her to continue to work. In other cases, the employee is often assigned so much work, the employer will be deemed to have requested that the employee actually work longer hours.
Second, the legislation generally requires that employers maintain their own records of the time that their employees spend at work. Most employers fail to do so. Therefore, if there is an overtime dispute before a provincial tribunal, the employee’s evidence of hours worked, which can be flimsy and generally based on recollection, may be sufficient for him or her to prevail.
Even where overtime statutes do not apply to a particular employee, the employer may still be liable to pay for extra time worked. Many employment contracts or workplace policies set out a daily or weekly expectation of time worked for salaried employees. Such statements, when found in a contract or manual, essentially create a promise that employees who routinely exceed these maximums will be paid for that time.
As well, while BlackBerrys are seldom used exclusively for business purposes, that alone does not render employers immune from overtime claims based on their use. Employees routinely fire off business emails from home, on public transit and even on vacation. When an employer supplies the device and then permits its employees to perform work-related duties outside of normal working hours, it has essentially asked that overtime work be performed. And with the dawn of overtime class action lawsuits already upon us, it won’t be long before these claims begin to include BlackBerry use as a component of an employee’s total time worked.
In light of the times, here is my advice to Canadian workplaces struggling to adapt:

  • Review and revise employment policies and ensure that employees are not permitted to work overtime without the express consent to do so.
  • Implement systems to monitor overtime worked and preserve the records of such time.
  • Seek counsel to ensure that the specific overtime rules are understood and are attentively followed.