Many employees are not paid for the overtime hours they actually work.  Such dedication may be desirable to employers, but that does not necessarily make it legal.

Joseph Holland didn’t argue when he was paid straight time, not overtime pay, for his 1,581 hours of overtime. Dismissed 3 years later, he sued his former employer for more than $17,000 in unpaid overtime. The employer, Northwest Fuels Ltd., argued Holland agreed he would be paid straight time for overtime hours because he was paid a higher hourly rate than other employees doing the same work.

Fortunately for Holland, employment standards legislation across Canada prohibits agreements that provide employees with less than the minimum standards set out in those statutes. The British Columbia judge ruled that statutory rights are implied into contracts and therefore, Holland had merit for his claim. Notably, the right to be paid overtime need not be negotiated and written into an employment contract to govern the relationship or the adjudication of any disputes.

More recently, employees of KPMG LLP filed a class-action case against their employer claiming what could amount to between $65 million and $100 million in damages for unpaid overtime. Here is a link to an article by Yosie Saint-Cyr of HRinfodesk.com about this claim. The article also includes provisions on who is and who is not entitled to overtime pay.

Despite the findings in Holland’s Case and the recent class-action lawsuit against the CIBC, claiming overtime pay for employees who have worked more than eight hours in a day or were “forced” to work through lunch, employees shouldn’t assume they too are entitled to overtime pay. They must keep in mind that;

Employees are governed by differing employment standards legislation across Canada. Some employers,  the CIBC in the above-mentioned case for example, are bound by federal laws that require overtime pay be calculated daily after the first 8 hours of work. Others may be bound by provincial laws which, in Ontario for example, stipulates employees must be paid overtime par for hours worked in excess of 44 per week.

There must be evidence the employee has worked overtime. Daily calendars, time sheets, dockets, emails and any other form of dispositive proof should be preserved.

Provincially, employees have various dispute resolution mechanisms that provide alternatives to bringing a court action. Given the various deadlines for commencing a claim and statutory exceptions to receiving overtime pay, employees should meet with a lawyer if they are considering a complaint.

Employers and employees can agree to various arrangements or be subject to company policies, such as banking overtime hours. However, if that agreement provides the employee with less than the minimum provincial employment standards, it is invalid.

Click here for the original article from Metro News 

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at [email protected] or visit www.toronto-employmentlawyer.com