Archive for July, 2010

Overtime for managers: What’s in a name?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

What is a manager? There are a lot of job titles out there that may include the term, but are they really a manager? Should titles of people who manage people and those who manage things like processes and systems be different? For an employer, it’s critical to make the distinction when it comes to employment standards issues such as overtime.

Employments standards vary in each jurisdiction across Canada, but they all have specific overtime provisions, including the exemption for some jobs and positions from overtime pay. But some employers may get tripped up by these exemptions. Yes, managers are generally excluded from overtime pay. But just because an employee is called a manager doesn’t mean she’s exempt.

Employment standards usually have a definition of what constitutes a manager and if an employee doesn’t meet that definition, she is entitled to overtime. An employee may have “manager” in her job title, but if she doesn’t really supervise other employees or company resources, she probably doesn’t qualify to be exempt. Even if someone is normally a manager or supervisor, if the bulk of the overtime work she is doing is non-supervisory in nature, she is entitled to overtime pay.

The standard for who can be considered a manager is there so employers don’t superfluously slap a title on someone just to avoid paying her overtime. But should supervisory function be the standard for the exemption? What about the importance of the work to the employer, or the nature of the work?

On the other side, it’s assumed managers are more well-paid than regular employees and any demand for extra work is part of their regular compensation, which is likely part of the rationale for making them exempt from extra pay for extra hours. But this isn’t necessarily the case, especially in the case of small companies or regular employees with a lot of seniority. Managerial work is also usually more demanding, so more hours could be that much more difficult for them. 

Working extra hours can be seen as part of a manager’s responsibility for which she isn’t entitled to overtime. But what if part of her responsibility is covering for employees who can’t finish everything? Couldn’t performing the non-managerial tasks be considered part of her managerial responsibility? However, if doing those tasks takes up half the manager’s time, she gets overtime if it takes her past normal working hours.

It can be confusing for employers to figure out who is and isn’t exempt from overtime pay when it comes to managerial work. In the end, the safest bet is to be familiar with the employment standards legislation in the employer’s particular jurisdiction — and maybe err on the side of caution, too.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publicaiton that looks at workplace law from a business perspective. For more information, visit http://www.employmentlawtoday.com.

‘I quit – maybe not’

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Sometimes it may seem like an employee doesn’t want her job. And sometimes it may seem like an employee has abandoned her job. However, as has been demonstrated numerous times in the realm of employment law, employers should never assume an employee has quit.

A fundamental principle that has come out in various court decisions is that an employer must have clear and unequivocal evidence an employee has resigned. Courts will lean, quite far, in favour of the employee to ensure she isn’t being pushed out.

That’s because employment is generally very important, both financially and psychologically, to people and it’s unlikely they will give this up in moments of emotional turmoil. Words or actions in the heat of the moment are often different once cooler and more thoughtful heads prevail. In many cases, all it requires is common sense to see it’s unlikely a resignation has taken place.

A Toronto employer was recently ordered to pay $20,000 to a former employee because it ended her employment over a leave the woman was taking in order to have an operation and medical treatment. The employee was diagnosed with breast cancer and said she would need to take time off and gave her last date of work as the day before the operation. However, the employer took the written notice of her leave plans as a resignation and terminated her employment as of her stated last day of work.

Unfortunately for the employer, nowhere in the letter or in her verbal communications did the employee ever say she was resigning. She maintained she was taking a temporary leave but, since she didn’t have a specific return date, the employer took this as an end to her employment. The fact she was taking the leave for cancer treatment made the optics that much worse for the employer.

While a little common sense — and perhaps some compassion — would have helped the employer realize the employee wasn’t resigning, there have been other cases where employers might not be at fault for assuming a resignation. Employees have stormed out of the office in a huff, cleared out their belongings, or have even said, “I quit.”

However, in most instances like these, the employer can’t make the assumption it’s an actual resignation. Generally, without a written notice of resignation, the employee has to be given a chance to think about it and confirm the resignation. In the alternative, the employer can terminate the employment but will likely have to provide reasonable notice as per normal dismissals without cause.

Should an employer be allowed to accept a non-written resignation if it’s adamant enough, or should it always have to confirm or wait and see? If an employee specifically states that they quit and leaves the workplace, shouldn’t that be enough?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

Does duty of care extend to the playing field?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Workplace violence is a significant concern for employers, because of the disruption it can cause in the workplace — and its negative effects on productivity — as well as the liability workplace violence legislation and the courts place on employers’ shoulders. Provincial governments have been turning their attention to ways to combat workplace violence by passing legislation such as Ontario’s recent Bill 168, which puts heavy responsibility on employers to take measures to protect workers from workplace violence.

Courts are also taking the issue seriously, as evidenced in a recent Ontario case where Bell Canada was held liable for not properly investigating an incident where a manager pushed one of his subordinates into a filing cabinet during an argument. Though the original damages of $500,000 were reduced on appeal, Bell was still on the hook for more than $100,000 because it didn’t properly investigate the incident or address the assaulted employee’s state of mind, even though she went on stress leave.

As the provinces step up efforts to reduce workplace violence, employers are faced with more proactive obligations. For example, Bill 168 requires employers to assess their risks of workplace violence and investigate any incidents. In Ontario as well as other provinces, workplace violence doesn’t just include employee-on-employee violence, but also violence against employees from non-employees, such as customers. Ontario employers are also required to take measures to protect employees from domestic violence that could spread to the workplace.

However, what if the line defining the workplace is blurred? How liable are employers for violence that happens to employees away from the traditional workplace but while they are doing something work-related? Where do incidents such as carjacking a truck driver or robbing a cable technician fit?

Some time ago I heard about an incident in a work softball league where players from the two teams got into a fight. This is an interesting scenario because although it took place after work hours and the employees weren’t working, the companies sponsored the teams, which consisted of employees sporting the companies’ logos.

It could be argued these circumstances parallel those of a company-sponsored holiday party held at a venue outside of the workplace. It has been proven in court this kind of event can be considered an extension of the workplace and employers have a duty of care to protect employees from violence and harassment.

So if an employer sponsors a team of employees in a sports league, is the league considered work-related and does the employer have a duty of care to protect those employees from violence?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more infomration, visit www.employmentlawtoday.com.

How much hardship is there in not trusting someone?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

It seems the only certainty about just cause these days is the uncertainty of it all. A common refrain from employers when it comes to employee misconduct is “What does it take to get fired?”

Things become particularly confusing when drugs or alcohol are involved, because the spectre of an addiction, which is considered a disability under human rights legislation, is raised. If there is an addiction, the employer must accommodate it to the point of undue hardship.

Things can get a little dicey when a large part of an employee’s misconduct involves a breach of trust. If an employee’s job requires a high level of trust and misconduct arising out of drug or alcohol abuse is involved, how much can the employer’s inability to trust the employee go towards undue hardship?

Take a recent case at a hospital in Collingwood, Ont. A registered nurse who worked in the emergency department was caught stealing drugs for her own use — something she had apparently been doing so for years. When ordering doses for patients, she would order extra for herself. This was something she had done at another hospital, for which she was fired.

The hospital kept her on the payroll while she received treatment and disability benefits, but terminated her employment when it came time for her to return to work, saying she had betrayed its trust and endangered patients. It also said it couldn’t accommodate the restrictions on her nursing licence placed by the Ontario College of Nurses, including constant supervision.

However, the Ontario Arbitration Board said the hospital had an obligation to try to accommodate her. Though it didn’t order her reinstatement, the hospital had to investigate accommodation options because the board felt relapses were common for addicts before they finally beat their addictions. Because the nurse returned to rehab after her second instance of stealing drugs, the board said the hospital must try to accommodate her while she tried to overcome her addiction.

While an employer in these circumstances doesn’t have to hire an employee back if it can prove undue hardship, it’s often difficult to do. In a case like this, the employee may be physically able to do certain jobs the employer can give her, but how does it prove a certain level of distrust, and what is the threshold level of distrust for there to be undue hardship?

Many employers might look at these circumstances and think there’s no way the nurse could go back to working in any area in a hospital as she had already relapsed and seriously violated her employer’s trust twice, but it’s not that simple. A lengthy period of time where an employee betrays an employer’s trust in a position of heavy responsibility might damage the employment relationship beyond repair, but an employer wanting to end that relationship better be ready to clear a high bar in trying to prove it.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more infomration, visit www.employmentlawtoday.com.


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