Accessibility can lead to extra hours
Most workers are able to stay in touch with their employer outside of the workplace, through the use of BlackBerrys or other technology that makes it simple to keep connected. However, it may be too easy as the temptation can be for an employee to do work remotely or the employer to make work-related requests electronically. If this happens, the employer runs the risk of being on the hook for compensation to the employee for the extra time.
Gwendoline Allison discusses why employers should be aware of the extent of BlackBerry and personal digital assistant use of employees and how they can guard against unexpected overtime expenses.
The arrival of BlackBerrys, personal digital assistants and other forms of remote access has been hailed as a godsend for those looking for additional flexibility and options to keep in touch with work. They provide more freedom to stay connected with work when away from the workplace and mean employees are free to accept and handle work projects anytime and anywhere.
While that prospect is attractive to many employers and employees, it raises difficult issues. One is the psychological issue: BlackBerrys create a feeling of the “24/7” working environment, which in turn may contribute to stress and burnout. In February 2008, Citizenship and Immigration Canada banned its employees from using BlackBerrys between 7 p.m. and 7 a.m. to reduce stress.
A further issue, one not discussed as often, is compensation: Is an employee entitled to be paid for using a BlackBerry or logging in for work purposes at night or on weekends? If so, what options are available to employers to minimize or manage that liability?
The compensation issue is a hot topic. Indeed, it was a point of negotiation between the U.S. television network, ABC, and the Writers Guild of America. During the negotiations, the network had sought a waiver of all pay claims for work using BlackBerrys. The guild disagreed.
“BlackBerrys can be liberating; they can help people keep tabs without going into the office,” the Writers Guild spokesperson said during the negotiations. “But they can also shackle people to their jobs. If people use their BlackBerrys to do their jobs — to write material, schedule appearances and so forth — while not physically at their desks, they should be compensated.”
The parties reached a compromise, wherein ABC agreed to pay workers for using their BlackBerrys at home, but only for work-related usage. The compensation will not include use of the device to check e-mail at night, but writers and producers will be compensated in certain circumstances, such as when an important news story breaks after office hours. For employers in British Columbia, the issue falls within two related areas of law: Overtime and payment for hours worked. Under the Employment Standards Act the maximum hours of work are eight hours a day and 40 hours a week. If an employer directly or indirectly allows an employee to work beyond those hours, the employer must pay overtime pay at one and one-half times the normal hourly rate. For salaried employees, the salary is converted to an hourly rate by dividing the salary by the “normal or average” hours worked by the employee.
The overtime provisions do not apply to all employees. For example, they do not apply to managers or “high technology professionals.”
However, even if the employee is excluded from the act’s overtime provision, the employer may still be liable for claims by employees for additional compensation, if that employee has stated hours of work in an employment contract or an office policy. In that situation, the rate for the additional pay would be calculated by dividing the salary by the regular hours and then paying the same rate for the additional hours.
An employee does not need specific permission to work outside regular hours before being entitled to additional pay. An employer may become liable if it provides the mechanism for BlackBerry use or remote access but says nothing more. Very often an employer is not aware of the potential liability until faced with a claim after the fact. The claim itself may span several months and the employer may have little in the way of a defence.
A laissez faire approach to the issue is a risky and potentially expensive proposition for an employer. There are, however, several options available to an employer to address the potential liability for claims of additional pay for BlackBerry use or remote access:
•Have a clear policy regarding BlackBerry use and remote access after hours.
•Ensure there is a consistent approach to hours of work and overtime.
BlackBerry and remote access policy
The following are questions an employer should consider when creating a BlackBerry policy:
•Do you want the employee to use a BlackBerry at night or on weekends, or do you prefer to have the employees leave their BlackBerrys in the office when they leave? Some employers ban the use of BlackBerrys after a certain period and block out remote access at certain hours.
•Under what circumstances do you want the employee to be required to be available on BlackBerry or remotely? Is it generally or emergency only? If it is for emergency use, what constitutes an emergency?
•Do you want the employee to require specific permission before being entitled to log on after hours?
•If you want the employee to be available, how should the employee be compensated? If the employee is an hourly employee, there may not be a choice but to pay or give time off in lieu. For salaried employees, there are several options, which tie in with a general approach to hours of work.
Hours of work
For salaried employees, the potential liability arises when employees have set hours of work, either by virtue of a contract or a workplace policy. In that way, the employer is defining the “normal or average” hours of work.
To reduce or manage the potential liability, the employer should consider the following issues:
•Do you really need a statement of set or regular hours? If not, don’t have one.
•If you really need or want a statement of regular hours, consider a policy that to be eligible for additional pay, the employee must obtain authorization in advance.
•Consider a policy statement that the salary includes all hours worked. Such a statement will not entirely eliminate an overtime claim by a non-manager but will eliminate claims by management and other employees excluded from the overtime provisions of employment standards legislation.
•As an alternative, consider other forms of compensation for additional hours, such as time off in lieu or a bonus at year end. Provided that the total income divided by hours worked does not fall below the minimum wage, the scheme likely will not offend the provisions of employment standards legislation.
As with all policies implemented by employers, policies will only be effective if they are applied and enforced rigorously. Consequently, ongoing monitoring is crucial. Having clear policies and enforcing them will go a long way to managing the employer’s potential liability for additional pay. Clear policies and expectations may also deal with an employee’s perception that they are expected to be available for the employer “24/7.”
Gwendoline Allison is a partner with Clark Wilson LLP’s Labour and Employment and Commercial Litigation Practice Groups in Vancouver. She can be reached at (604) 643-3166 or email@example.com.
Government department blacks out night-time Blackberry use
Excessive workload and stress became significant workplace issues at Citizenship and Immigration Canada by early 2008. So, in what the department hoped would be a step towards easing those pressures, it implemented four new operating rules. One of those rules was to ban BlackBerry use by its employees between the hours of 7 p.m. and 7 a.m. each day and weekends and holidays.
In a Jan. 31, 2008, memo to department staff, Richard Fadden, the deputy minister of Citizenship and Immigration, said the BlackBerry blackout would help employees balance work and family lives.
“Work life quality is the creation of a healthy, supportive work environment that helps us better manage our work and personal responsibilities,” the memo said.
Despite the department’s proclaimed objectives, some were skeptical of the ban, saying it didn’t deal with the real causes of workload and stress.