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Outcome of Latest Overtime Class Actions Case Could Open Floodgates to Lawsuits against Canadian Employers

Law firm BLG points to the immediate steps organizations should consider, to address risks in what could be the "calm before the storm"

TORONTO, March 16 /CNW/ -

What:

Today, employees are connected to the workplace more than ever, with the availability of modern technologies such as laptops, cell phones, and personal data assistants ("PDAs"). Connectivity can create significant overtime-related exposure, especially if there are no applicable overtime policies in place, as demonstrated by recent developments in the U.S. and Canada.

The outcome of the latest class action case within Canada's financial industry could be pivotal in potentially opening the floodgates to overtime lawsuits against employers.

How:

BLG points to five key steps employers should take to address the risk of overtime claims.

    
    1)  Determine which employees are entitled to overtime pay and which are
        "exempt": Overtime cases commonly arise from "misclassification",
        with employers classifying staff as exempt from overtime compensation
        when legally this is not the case. Employers need to examine
        exemptions carefully - and not apply them broadly. Generally,
        overtime pay will apply to all employees, salaried or otherwise,
        unless the individual falls within one of the specific exemptions
        specified by legislation (for example, for employees whose duties are
        truly "managerial" in nature).

    2)  Determine which categories of employees need modern remote-access
        tools: Assess the option to only provide remote-access tools to
        employees that are exempt to overtime compensation. Where this is not
        realistic, the next step is fundamental for employer's consideration.

    3)  Create, implement and rigorously enforce a general overtime policy
        and specifically, a remote-access overtime policy: Policy should set
        out any limitations on the use of remote access tools, as well as
        requirements for the authorization and prompt reporting of overtime.

    4)  Keep an accurate record of all hours worked: Employers have a
        statutory obligation to maintain proper records of all hours worked.
        In the event of subsequent litigation, such records may be critical
        in disputing a claim of overtime hours worked.

    5)  Assign employees work targets that are reasonable within an
        employee's regular work hours: Overtime work completed under "over-
        worked" conditions, on a remote-access tool or otherwise, can result
        in a finding that the employer has "tacitly" approved the overtime
        hours being claimed.
    

Who:

Lawyers from Borden Ladner Gervais' (BLG) Class Actions Practice Group are available to provide further insight and commentary on class action lawsuits.

About Borden Ladner Gervais LLP

With more than 750 lawyers, intellectual property agents, and other professionals working in six major Canadian cities, Borden Ladner Gervais LLP is the largest Canadian full-service law firm focusing on business law, litigation and intellectual property solutions. BLG provides bilingual services in virtually every area of law, and represents a wide range of regional, national and multinational organizations. For further information, visit www.blgcanada.com.

For further information: or to schedule an interview, please contact: Nicole Leaver, Ketchum for BLG, [phone], [email protected]