What happens when an employee hangs around work after quitting time to help a co-worker?
Question: If an employee hangs around in the workplace after her shift and helps a co-worker without approval from the employer, is overtime pay owed? What’s the overtime threshold between being physically present in the workplace and doing any work?
Answer: Many jurisdictions in Canada operate on the basis that any overtime worked must be compensated, even if it was not requested, directed or approved by the employer. This can come as an unwelcome surprise to an employer that finds itself unintentionally on the hook for overtime pay. This is why I often advise employers to adopt a strict policy that overtime cannot be worked unless authorized and, in addition, to impose discipline on employees that insist on breaching this policy and working overtime without authorization. While this may seem to be an odd approach, imposing such discipline can be the only way to prevent unnecessary overtime.
That said, an employee must truly be working in order to be entitled to overtime pay. This does not include “hanging around” and offering occasional assistance to a friend that is still working. As the question suggests, merely being physically present is not enough; the employee must be actively working.
Recent cases, including class actions, have caused more attention to be paid to this issue. In some cases, employees will claim hundreds or thousands of overtime hours, dating back over a period of years. I often advise employers to adopt a requirement that employees log and submit their hours on a weekly or bi-weekly basis. By doing so, they will be in a stronger position to refute a subsequent claim that the employee has worked overtime every week for years.
In this context as well, a clear and consistently-enforced policy is advisable.
