It’s 11 p.m.. Do you know where YOUR employee is?
Hopefully not. But if she’s home connecting to work on her laptop or smart-phone, she may be running up an overtime tab. Along with dozens/hundreds of others in your organization.
Canada has already witnessed the migration of American-style employee class actions across the 49th parallel. Dara Fresco’s bid at CIBC, described in an article in The Star, got slapped down (see Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 31177 (ON S.C.). But Fresco's taking that rejection to a higher Court, according to an article in the Ottawa Citizen. And the real eye-popper is the overtime class action filed by, yes, a group of highly-paid “professionals” (senior analysts, investment bankers and the like) against CIBC World Markets.
Take that as your “background trend”. Then add the new exposures created for employers by the advent of “24/7” access to the workplace/clients. Just ask T-Mobile — the latest American company to get hit with a class action claim based on unlimited use of PDA’s. Or Verizon. Or CB Richard Ellis (Inc.) before them.
Are Employers sitting on a time-bomb?
You betcha.
The Saving Grace
It may not be (entirely) too late. Madame Justice Lax in Fresco opined that it’s an employer’s right (read “obligation”) to control and approve overtime. “An employee cannot foist services on an employer and expect to be paid wages for them”, said her Ladyship.
So…
Decide who in your organization really needs those smart-phones, etc., and establish clear rules for their use. If you don’t have a Policy on overtime, GET ONE! And if you’re counting on the fact that you regard certain of your employees as “managers” under the law, make sure you’re right!
Above all:
Pray that it’s somebody else’s employees who take the next overtime run, not yours!!
I am curious about what percentage of employees are issued these types of devices by their employers. Most employers have a policy regarding expectations of personal use of these devices. Do they also have published expectations of reply times after hours? Mort's blog post is thought provoking!