'It's these avenues of mistakes by employers in respect of meeting minimum legislative standards that can give rise to multiple claims'
“Track as much as you can on pay stubs, including a pay-in-lieu option.”
So says Michael Horvat, a partner at Aird & Berlis in Toronto, who recently spoke with Canadian HR Reporter’s Jeffrey Smith about the best ways employers can mitigate any negative outcomes when it comes to overtime pay and a potentially ruinous class action lawsuit around this.
“At some point if challenged, whether it’s the Ministry of Labour or in litigation, any defense that you’re going to take is going to have to be backed up with paper and the best defense to claim that you haven’t paid overtime or you haven’t paid vacation pay is a document that says you in fact did pay overtime or you did in fact pay vacation pay.”
In recent years, many cases have been heard in which employees believed they are owed overtime and didn’t receive it. Employers would be well-served to know the best practices in avoiding this, according to Horvat, in the recent podcast.
“There has been a general focus on overtime because it provides both the largest number as far as rate and accumulation of potential risk is concerned and because it applies to an overwhelming number of employees across the country,” says Horvat, whose practice focuses on labour and employment law in both federal and provincial jurisdictions.
Recently, banking giant CIBC agreed to pay $153 million to about 30,000 current and former employees in a massive ruling that dated back to 2007.
Not all workers are created equal when it comes to overtime pay
The rules are complex and have to be considered over multiple jurisdictions for large employers, says Horvat. For example, some worker classes are not entitled to overtime, such as lawyers, accountants and professional engineers.
“What these rates differential rates, and differential applications create are avenues in respect of mistakes by the employers. And it’s these avenues of mistakes by employers in respect of meeting minimum legislative standards that can give rise to multiple claims that an employer has failed to remunerate their employees appropriately,” he says.
Check out the full podcast for more insights.