Salaried workers, overtime and hours of work

In our connected age, work often creeps beyond the set hours of the workday. See my last post about legislating the right to disconnect for more on this. We often get questions from employers and employees about whether salaried workers should be getting paid for these extra hours and what exactly counts as “overtime.” Let’s dive in.

Maximum Hours of Work

Under the Ontario Employment Standards Act, 2000 (ESA) most employees can legally work a maximum of 8 hours per day and 48 hours per week. It is possible for an employer to require that the employee work more than this, but in this case an agreement must be made in writing and the employee must be provided with this information sheet about hours of work and overtime pay first. Other jurisdictions have similar rules.

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Bill 164: Amendments to the Ontario Human Rights Code

Bill 164, introduced in October 2017, would expand the current prohibited grounds of discrimination under the Ontario Human Rights Code to include social condition, police records, genetic characteristics and immigration status. We are currently waiting on the Bill to pass, or not. It passed second reading and currently sits with the Standing Committee on Regulations and Private Bills. In its current form, the Bill would amend the Code to prohibit discrimination, or differential treatment on the basis of social condition, police records, genetic characteristics and immigration status. Presently, discrimination on these grounds is allowed in Ontario. Let’s take a look at what these proposed new grounds mean.

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Legislating the Right to Disconnect

The right to disconnect has been in the news lately following the release of the federal government’s report on their year-long consultations about modernizing the federal Canada Labour Code. Have a look at the full report: What We Heard: Modernizing Federal Labour Standards. 93% of respondents stated that employees should have the right to refuse to respond to work-related communication outside of working hours.

The french example

In France, the right to disconnect was enshrined in law in 2017. French workers in companies of more than 50 people have the right to turn off their work devices outside of working hours. The law was passed amidst concerns about unpaid overtime and increased employee burnout. Digital connectivity was slowly eroding leisure time. France is famously protective of leisure time and work there is highly regulated. The French also enjoy a minimum of five weeks of annual vacation and a standard 35-hour work week.

French companies have also reportedly taken matters into their own hands by creating workplace rules prohibiting or disabling email sent after hours and prohibiting the scheduling of meetings in the late afternoon.

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Secret Recordings in the Workplace

Technology has impacted our privacy in a myriad of ways. One crafty use of technology that we see more and more in workplace disputes, is employee made audio recordings. Employees are turning on their voice memo apps before they go into important meetings and covertly recording their conversations. While undeniably an audio recording is great evidence of what was said, the practice raises concerns and questions.

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Public Holidays and Retail Business

Summer is almost over. I’m looking forward to kids going back to school and enjoying our last public holiday of the season. On the topic of public holidays; I’ve blogged about Labour Day in the past and we have followed along with the various changes (and reversals of those changes) made by Bill 148 to the Ontario Employment Standards Act public holiday pay rules. You can read all about Bill 148 here and about public holiday pay specifically here.

There has also been talk from Ottawa in the past month about plans to introduce a national statutory holiday to mark the legacy of residential schools. The day will be called National Day for Truth and Reconciliation. Negotiations about the date on which the holiday should be held are ongoing. June 21, which is National Indigenous Peoples Day, is reportedly too close to Canada Day and St. Jean Baptiste Day, a public holiday celebrated in Quebec. An alternative would be September 30, Orange Shirt Day.

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After a Key Employee Leaves

Further to our post last week about key employees leaving, employers may wonder about risks to their business and options for recourse if that key employee leaves and sets up a competing shop next door.

There are three main potential risks presented by a departing key employee:

  • Misuse of employer confidential information
  • Setting up a competing business
  • Soliciting former employer customers
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