Howard Levitt
© Provided by Financial Post Employees are working longer hours than those in the office
There was a spirited, indeed clamorous, uproar in response to my columns discussing employees who are ostensibly ‘working’ from home but not doing very much work at all. My point was that remote working could be a vehicle for abuse and some will take advantage to the extent that they could not at the office surrounded by their co-workers and managers. Why complain of such ‘time theft’, my inbox reverberated, while ignoring ‘wage theft’?
Not wishing to be inequitable, here goes.
Just as some employees will take advantage of their employers, some employers are equally unscrupulous. The productivity of Canadians working remotely, on an hourly basis, is 21 per cent less than employees working from the office, according to Aternity’s Global Remote Work Productivity Tracker. While their productivity is decreasing the longer remote work continues, at-home employees are spending 10 per cent more time working than those in the office.
Are they entitled to more money as a result of working these additional hours even if their overall productivity has declined? And is not paying for that extra time ‘wage theft’ in the same way that pursuing personal endeavours while on the clock is ‘time theft’?
There was a spirited, indeed clamorous, uproar in response to my columns discussing employees who are ostensibly ‘working’ from home but not doing very much work at all. My point was that remote working could be a vehicle for abuse and some will take advantage to the extent that they could not at the office surrounded by their co-workers and managers. Why complain of such ‘time theft’, my inbox reverberated, while ignoring ‘wage theft’?
Not wishing to be inequitable, here goes.
Just as some employees will take advantage of their employers, some employers are equally unscrupulous. The productivity of Canadians working remotely, on an hourly basis, is 21 per cent less than employees working from the office, according to Aternity’s Global Remote Work Productivity Tracker. While their productivity is decreasing the longer remote work continues, at-home employees are spending 10 per cent more time working than those in the office.
Are they entitled to more money as a result of working these additional hours even if their overall productivity has declined? And is not paying for that extra time ‘wage theft’ in the same way that pursuing personal endeavours while on the clock is ‘time theft’?
Employees paid hourly are entitled to be paid for all hours worked, however inefficiently deployed. Salaried workers will generally not receive overtime pay, unless their agreement with their employer requires overtime for hours in excess of their scheduled working day.
If salaried employees’ work hours increase dramatically over a prolonged period, they have three options. They could potentially claim constructive dismissal, refuse to routinely work the increased hours, or sue for the additional hours based on it being a breach of their written or implied employment agreement.
But all employees, who are not exempt from the overtime provisions of their Employment Standards Act, have an entitlement to overtime pay of 1.5 times their hourly wage.
The hours differ in each province. For example, it’s more than 44 hours in a week in Ontario and 8 hours in a day for employees of federally regulated employers.
Those hours include breaks but not lunch periods. In most provinces, managers are exempt from the overtime pay and a common form of ‘wage theft’ is to not pay overtime to employees labelled ‘manager’, who are essentially lead hands performing largely the same functions as others. In other words, to be exempt from overtime, you have to spend your hours managing others or involved in executive functions. Routinely miscategorizing employees in that way is an invitation to a class-action lawsuit.
Why, some employers ask me, should I pay an employee more to be less productive, as the statistics show. That would mean that employers are paying more for less. As I say to them and to my callers on my Bell Media radio show, I don’t write the law, I just explain it. In other words, a valid point but entirely academic.
But here is the problem. Employees, particularly if they are working from home, have less evidence of the hours that they work. The fact that their computer is turned on for a certain period is not entirely determinative and often their activities are not tracked. Since they are working remotely, their start time and completion time also vary.
So the employers’ instinct, in many instances, is not to pay the overtime, although it’s technically owing. If employees sue to recover it, they have the burden of proof and an employment relationship rendered untenable. At the very least, they are unlikely to receive the next promotion. And although reprisal against an employee for making an overtime claim is itself a direct violation of the Employment Standards Act, the employee may not be up for yet another legal battle with an increasingly outraged employer.
In short, overtime, which would be paid as a matter of course at the office, will less likely be quickly paid to employees working remotely which is also seen a form of wage theft.
Another issue, overlooked by employers and employees, are the many conversations most employees have in a day “off the clock”, for example, in responding to a call or email after their regular hours. If they are for business purposes, that’s part of their work hours and legally must be treated as such, including as overtime.
Employees should best keep a record and inform their employer if they wish them to be accounted for, so lieu time or overtime pay can be agreed to. It’s fair to say that few employers are monitoring and paying for such calls as overtime pay even though they are required to. That failure will be keeping my firm’s class-action group busy, on behalf of employers and employees alike.
The reality is that many employees are working overtime for which they are not paid and that is exacerbated, just as is time theft, due to the absence or limits of time tracking. Although most employees are paid for their time, when an employer cannot personally vouchsafe for the employees’ additional hours, particularly if they see no increase, and possibly a decrease, in productivity, they are loathe to pay. Employees wishing to ensure payment for their time should keep track and send their employer their time sheet on a weekly basis.
Employers wishing to avoid a class-action lawsuit for overtime pay, particularly from their remote workers, should have written policies, signed off by employees, prohibiting overtime without a written sign-off by the management. Although that will not protect employers who are willfully blind to their employees’ increased hours, it is more difficult for an employee working remotely to argue that the employer was aware of all of the hours they were working.
Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
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