It's easy to work overtime with a Blackberry, but do you have to?

QUESTION:  The other day I heard a talk by a CEO who recommended that every office/workplace should have some sort of policy about working outside regular business hours. Specifically, he was referring to this day and age of BlackBerrys and Smart Phones where people find themselves responding to or sending verbal or texted instructions outside normal working hours. What are the employees’ or employers’ obligations in these cases? If I receive a message from somebody at work on Sunday afternoon, I usually think they are an idiot or a loser because they are working on the weekend. On the other hand, if I respond to my boss at 10 p.m. on a Friday night, I think I’m a start and hope he thinks the same. In reality, unless it’s really important, he probably thinks I’m an idiot or loser.
ANSWER:  The vast majority of people wandering around with a BlackBerry or Smart Phone are salaried employees. They don’t have an hourly rate per se but are paid a fixed rate for every week.
The world is rife with the persistent misapprehension that if you are salaried you don’t get overtime. While management employees don’t get overtime, everyone else does.
Technically, even with salaried employees, the employer is supposed to keep track of all time worked. The reality is that almost nobody does. But let’s assume that there is an employee who is spending an extensive amount of time on their phone in off hours. Let’s also assume that they keep copious notes of that time.
If they ever wanted to make a claim to the Ministry of Labour, the investigating officer would start by figuring out their regular rate per hour. If the pay stub says 37.5 hours per week, they will take the salary and divide it by 37.5.  If there is evidence of work in excess of 37.5 hours they will be awarded their regular rate up to 44 hours and time and a half after that. Vacation pay at the rate of 4% will be added.
If the pay stub does not indicate a regular amount of hours per week, the officer will assume that the salary pays for 44 hours a week and divide accordingly. 
The employee will get this award so long as the employer has “suffered the work to be done”. The employer can’t defend itself by claiming it did not ask the employee to work in off hours. The rule is that if the employer was aware of the work being done, it has to pay for it, even if it did not ask for it.
An employer could have a policy prohibiting people from working in off hours or requiring employees to seek pre-approval to work in off hours. If, however, the employer doesn’t enforce that policy and just gives it lip service, they are still going to have to pay.
More common is a scenario where the employer expects employees to work all kinds of hours outside of the regular work week to take care of customers and the needs of the business. The Employment Standards Act says that an employee cannot be required, in the absence of a special agreement, to work more than eight hours in a day and 48 hours in a week. An employee who is working more than that could complain to the Ministry of Labour.
If an employee made a complaint under the hours of work or overtime sections of the Employment Standards Act, theoretically they could do that with impunity. There are reprisal sections of the Act which prohibit an employer from punishing in any way an employee for having stood up for their rights. Although Employment Standards Act officers are fairly vigilant about enforcing those reprisal sections, ultimately, at the end of the day, sooner or later, the employer can get you.
So, the reality is that you might get a complaint after you’ve terminated somebody or they’ve quit but complaints to the Ministry of Labour from existing employees are extremely rare.
Should employers have a policy stating that off hours messaging and work should only be done if it’s extremely important? Sounds like a good idea to me but it makes little difference to the law.
There needs to be a way to set your phone so that if you get an email or text message from your boss you are alerted but from anyone else you simply don’t know. Then you could be a star without other people thinking you’re an idiot.
As published in the Hamilton Spectator, June 10, 2013
Ed Canning
Ed Canning
P: 905.572.5809