Best practices for helping to avoid unpaid overtime claims
Question: We have heard a number of stories recently involving workers claiming overtime because they were required to respond to emails on their smartphones after hours. What are the best practices here? Do we need a policy banning it or can it be expected that answering an email or two after hours is part of the job and, therefore, not considered overtime?
Answer: It is particularly ironic that I actually wrote a significant portion of this article on my BlackBerry after hours. However, I am a manager who is ineligible for paid overtime and I was making up for lost time due to an appointment earlier in the day.
My own personal experience illustrates how the use of technology can actually be a bit of a double-edged sword in many respects. On the one hand, tools such as smartphones, tablets and laptops make it easier for employers to extend the workday and place obligations on employees even if they’re offsite and it’s after hours. Such tools can negatively impact work-life balance.
On the other hand, technology can bring us tremendous freedom to complete our work when and where we choose, and allow us greater flexibility and work-life balance in some situations. For example, even though I came into the office late today, my smartphone allowed me to leave at a reasonable time.
Today was one of the days when I didn’t have the car so I had to take transit. Ordinarily, time spent commuting would have been wasted and unproductive, but because I had my BlackBerry, I was able to extend my workday and remain productive on the journey home.
Unpaid overtime litigation
While recently there has been quite a bit of unpaid overtime litigation in the United States based on employees using their company-issued smartphones after hours, there have been few, if any, such claims in Canada.
That’s not to say such claims couldn’t happen here — particularly in light of the number of unpaid overtime claims against several high-profile Canadian employers in recent years.
There’s no doubt some employers can be unreasonable when it comes to requiring employees to be available to answer work-related emails after hours. This definitely poses a certain amount of risk to those organizations.
Some companies have responded by banning business emails and smartphone use after hours. For example, a few years ago, Volkswagen in Germany stopped sending work emails to its unionized workers 30 minutes after the end of their shifts and didn’t resume sending them until 30 minutes before their shifts begin.
I personally wouldn’t go that far in most organizations because, as mentioned, smartphones can provide tremendous freedom and flexibility to employees — being too rigid might just result in throwing the baby out with the bathwater.
Implementing best practices
Nevertheless, there are a number of best practices employers can implement to help deal with this issue and mitigate the risk of unpaid overtime litigation. While the legislation is different across the country, employment standards legislation in most jurisdictions generally exempts managers (and sometimes certain professionals) from having to be paid overtime.
Therefore, it is important to determine exactly which employees should be provided with company-issued smartphones. Such devices should be limited to employees for whom there is a definite business need to be contacted offsite or after hours.
Managers throughout the organization must also be coached on setting expectations with respect to electronic communications and the timing of replies from their direct reports.
Other than in an emergency situation, it is important to get the message across to employees that they are not expected to reply to emails after hours, either using their smartphones or other channels such as webmail or text messaging.
It is also important to have a well-crafted overtime policy in place that requires preapproval before employees work overtime. However, such policies should include a provision that allows for approval after the fact for overtime worked in emergency situations or extremely busy periods where it wasn’t possible to obtain approval beforehand.
Where a non-managerial employee is expected to monitor and respond to email after hours they should receive some type of compensation, either in the form of paid overtime or at least some type of pay for being on-call (when not actually working or required to be onsite, although the time spent reading and responding to email should count as actual work and be subject to paid overtime).
I also believe employers can help to forestall potential unpaid overtime litigation by being somewhat reasonable and flexible (although this isn’t generally something recognized by the law).
In my mind, employees would be less likely to sue for unpaid overtime if their employer engaged in a bit of “give and take,” for example, with flexible hours and the ability to occasionally work offsite.
Brian Kreissl is the Toronto-based product development manager for Carswell’s human resources, OH&S, payroll and records retention products and solutions. He can be reached at [email protected] or visit www.carswell.com for more information.
