Employees arriving early or staying late
Question: Are employers required to pay overtime when an employee shows up for work early or stays late without being asked to? Does overtime apply if the employee is in the workplace outside regular hours but not doing any actual work?
Answer: Employees often spend time at their workplaces outside their scheduled hours of work. This could be personal time, for example, waiting to be picked up after work or sitting in the lunch room during lunch breaks. Employees may also come in early or stay late to catch up on work or attend to special projects. This extra time is not always requested or approved by the employer. The risk employers face when employees attend at work outside their scheduled hours is the possible liability for paying overtime wages for hours the employer may not even have been aware of.
Under employment standards legislation across Canada, employees are entitled to be paid for performing “work.” In most jurisdictions, an employee will be considered to be working if the employee is on shift performing labour for the employer, or on call at a location that is under the control of the employer. In British Columbia, for example, the Employment Standards Act defines “work" as the labour or services an employee performs for an employer whether in the employee's residence or elsewhere, and states that an employee is deemed to be at work while on call at a location designated by the employer unless the designated location is the employee's residence.
In general, for an employee who is in the workplace to be “working,” the employee must either be on shift performing tasks or waiting for work, or if the employee arrives early or stays late, be providing labour or services as directed or allowed by the employer. An employee who arrives early to read the newspaper will not be able to claim wages for that time.
The employment standards statutes in all Canadian jurisdictions require employers to pay overtime wages to eligible employees, where the employee works more than a specified number of hours in a day or week. The requirement to pay overtime wages will obviously apply if the employer requires or expressly authorizes the overtime hours. But an employer may also find itself liable for overtime wages if it acquiesces in the performance of work by employees outside their regular shifts.
The B.C. Employment Standards Act, for example, specifies that overtime must be paid if an employer “requires, or directly or indirectly allows” an employee to work more than eight hours a day or 40 hours a week. This puts the responsibility on the employer to control its employees’ hours of work, and to record any overtime that is worked. If employers want to avoid paying overtime wages, they must take proactive steps to prevent employees from starting early or staying late, including taking disciplinary action if necessary as shown in Director of Employment Standards, BC EST # RD016/04.
Other jurisdictions, such as Saskatchewan and Ontario, have similar requirements that the employer pay for overtime it directs or allows to be worked. However, some provinces take a different approach. For example, the Manitoba Employment Standards Branch considers overtime to be compensable only if the employer has given permission for it, or has knowledge of it. In Quebec, the legislation simply says that hours beyond the regular work week must be paid at the overtime rate.
Employers should be aware of recent court decisions in Ontario — Fulawka v. Bank of Nova Scotia and Fresco v. CIBC — that have allowed groups of employees to launch class action lawsuits against their employers for unpaid overtime. In these cases, the employees were subject to policies which generally prohibited employees from making overtime claims unless the overtime was pre-approved. However, the tasks which the employees were expected to complete often required overtime. The court held, among other things, that the practice of an employer in permitting employees to work unpaid overtime was significant enough for a class action to move forward.
For more information see:
•Director of Employment Standards, BC EST # RD016/04
•Fulawka v. Bank of Nova Scotia, 2012 CarswellOnt 7951 (Ont. C.A.).
•Fresco v. Canadian Imperial Bank of Commerce, 2012 CarswellOnt 7956 (Ont. C.A.).
