Never Saw It Coming
Three human resource landmines that could cripple your business if you don’t invest the time, energy and dollars to defuse them
by Shannon Sutherland
Hidden Landmine #2: Unpaid Overtime
There’s something satisfying about OT – scoring that goal four minutes after regulation ends, working around the clock to put together your sister’s surprise party or pulling an extra shift to meet a production deadline. Well, it’s satisfying when it pays off. What about when you lose the game, the party flops and you don’t get time-and-a-half for working that extra six hours? It’s frustrating. And the thing about frustrated people is that eventually many of them fight back, which could mean employers putting in overtime hours themselves, alongside their corporate counsel.
In Canada, overtime class action lawsuits have been filed against several high-profile institutions this past year, says Trevor Lawson, a partner in labour and employment practice at McCarthy Tétrault LLP in Toronto. Suits against CIBC, the Bank of Nova Scotia and KPMG, he explains, each seek millions in damages for unpaid overtime worked by current and former employees. (And this is no Central Canadian plot – each has representative plaintiffs from Alberta.) If certified, these lawsuits are expected to serve as springboards for similar class action lawsuits targeting large employers across Canada. While Lawson doesn’t want to speculate on the likelihood that the CIBC case will be certified, he acknowledges a trend towards certification.
“What I can tell you,” he says, “is that if this is certified, and we should find out if it is in December, then, in my estimation, that will result in the floodgates opening. My advice is to stay tuned.” He does add that class action suits are much more viable in federally regulated industries including the banking and airline industries, where lawyers don’t have to contend with myriad, often conflicting provincial codes.
According to Alberta Employment and Immigration, overtime means all hours worked in excess of eight hours a day or 44 hours a week, calculated on a daily and a weekly basis, and taken as the higher of the two numbers. Of course, as is true with most employment legislation, there is a list of exceptions as long as one’s arm, including managers and supervisors, lawyers, domestic workers, etc. As well, some industries and occupations are subject to variations in daily and weekly hours worked before overtime is payable. For example, those involved in geophysical exploration can work 10 hours per day or 191 hours per month before overtime is calculated. It is a myth, however, that salaried employees cannot accrue overtime. All employees who are not in exempted positions, including those who are paid a weekly, monthly or annual salary, must be paid for their overtime hours.
The provincial government says overtime must be paid at the rate of no less than 1.5 times the employee’s regular wage, unless excess hours are accumulated under an agreement. Employers and employees may agree, in writing, to trade overtime pay, hour for hour, for paid time off. It’s also government policy that these particular holidays must be taken within three months of the end of the pay period in which the overtime was earned; if not, overtime must be paid out at time-and-a-half.
To avoid legal action over unpaid overtime, Lawson suggests a comprehensive audit of current overtime policies, as well as an analysis of whether these have actually been followed. “If they are not already doing so, managers should be required to keep accurate records of all hours worked by employees, including authorized overtime,” says Lawson. “Overtime policies should be regularly reviewed to ensure ongoing compliance with all applicable employment standards legislation.”
Hidden Landmine #3: Religious Freedoms
When Esham (whose name has been changed) approached his employer about creating a quiet room so Muslim employees would have access to an appropriate place to fulfil their daily prayer requirements, the response was enthusiastically affirmative. Muslims pray five times daily, and often at least two of the prayers fall during regular work hours. “I used to just find a quiet hallway, but I was often interrupted,” says the Islamic engineer who works for a company in northern Alberta. “We thought a quiet room could be a place open to all faiths, where people could go and meditate and pray. I was very impressed with how willing the company was to accommodate my request.”
The New Jersey-based business magazine DiversityInc. reports that among 50 companies rated for their level of CEO commitment, collective quality of employee skill-sets, efficacy of corporate and organizational communications and use of minority-owned suppliers, more than one in three allow employees to take holiday leaves for religious reasons, and about one in five make special religious accommodations, such as providing prayer rooms. In a separate article, DiversityInc. says that Ramadan, the Muslim holy month, is also being marked by many employers. Some managers avoid scheduling working lunches that coincide with the Ramadan fast, and some provide Iftar dinners that celebrate the event’s conclusion. Ford Motor Company, for instance, has hosted Iftars for more than seven years.
Often people of different faiths aren’t accommodated in the workplace simply because employers don’t know what their needs are, says Trisha Gain, an associate with McLennan Ross LLP in Calgary. However, sometimes people who feel their faith is threatened are unaware that it’s ignorance at the root of the problem, not intolerance, and so human rights complaints ensue. At the University of Calgary in 2003, for example, Muslim students threatened a human rights complaint when a group praying in a hallway said they were forced out by security. The university quickly responded with a new, large prayer room.
In a recent tribunal, the Ontario Human Rights Commission decided that employers aren’t necessarily required to provide paid days off for non-statutory religious holidays, but two days leave should be given with the potential to make up for lost pay through, for example, shift changes. “The key words in human rights legislation in these cases is ‘undue hardship,’” says Gain. “Really, if it doesn’t cause an employer undue hardship, why wouldn’t they accommodate religious-based requests?”
With so many Alberta businesses consumed with trying to recruit and retain workers, it might be easy to identify hardship in having to devote people and funds to the scrutiny of workplace policies. That is, it’s easy until your organization is crippled by courtroom judgments or its reputation is ripped apart by a few missteps in management. Make the time. Spend the money. It’s best to get things sorted out before a spurned soprano comes strolling through the front doors.
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