Regarding hours of work compliance, what is the most confusing issue?

By Christina Catenacci LL.B., Editor, HRinfodesk.com---Canadian Payroll and Employment Law News, June 2011

Our poll asking readers what they thought was the most confusing issue regarding hours of work compliance did not yield any surprises-out of 228 respondents, 29.39% (67) answered “All of the above”. The issue of salaried versus hourly work was high on the list, coming in at 15.35% (35). Next highest was whether workers were exempt at 11.40% (26) and attendance and absenteeism at 10.09% (23). Then came flexible work arrangements at 9.65% (22), tracking and recording hours of work at 7.02% (16), minimum and maximum work hours in a week at 6.58% (15), and overtime hours at 5.70% (13). There was little response concerning scheduling at 2.63% (6) and rest periods at 2.19% (5).

As one comment suggests, one of the most confusing issues continues to be compensating management versus other workers:

I have found in this employment [question] and a few previous ones, the difference between management and hourly workers is the most confusing for the hourly employees. They don't seem to understand that management does not always work the typical 9-5 hours that they, the wage employees, work. Management should not be docked if they miss a few hours during those time slots especially when they are working an extra minimum of 5 - 10 hours of unpaid overtime almost every month, sometimes every week. Management does not have any banked time / lieu time accumulation like the wage workers do. Management does not get any extra pay for all those extra hours they work. One of the “perks” is that management employees occasionally take off early on a Friday afternoon…

On the list, this issue would fall into the category of whether workers are exempt - Depending on the jurisdiction and certain conditions, managers are exempt as can be seen in this article.

Let's talk about some of the most confusing issues as revealed in this poll.

Salaried versus hourly work

First, the issue of salaried versus hourly worker was highest on the list after “all of the above”. There is a wide misconception across Canada that employees paid on a fixed salary are not entitled to overtime pay. In addition, the misconception extends to employers believing that the method of payment (fixed salary or hourly pay) or the employment status (full-time, part-time) affects any entitlements or rights under employment/labour standards legislation in Canada.

It is important for employers to remember that being paid a salary or an hourly wage, or working on commission are not listed exemptions from overtime pay under applicable employment/labour standards legislation, and that workers paid on commission are also protected by provincial limits on hours of work and are entitled to overtime pay, unless exempt (depending on your jurisdiction).

Employers must pay employees overtime, unless the employees are clearly exempt under the law.

The Library section of HRinfodesk, under the heading Pay and Working Conditions> Hours of Work and Overtime > Overtime Requirements provides specific information for your jurisdiction.

Whether workers are exempt

Second, the question of whether workers are exempt is also confusing. Admittedly, sometimes it appears as though many exceptions do not make a lot of sense, are too numerous and too complex. But there are reasons for each exemption, and thankfully these exemptions are set out for each Canadian jurisdiction.

There are exemptions to hours of work and overtime rules. But these exemptions arise because of the job or the industry sector and are not based on method of payment or employment status. Many employees have jobs that are exempt from the hours of work and overtime provisions of the applicable employment/labour standards legislation in their jurisdiction. Some work in jobs where the overtime threshold is more than 40/44 hours in a workweek (depending on the jurisdiction).

These exemptions and various overtime thresholds vary depending on the jurisdiction and are mostly found in Regulations.

The Library section of HRinfodesk, under the heading Pay and Working Conditions> Hours of Work and Overtime > Overtime Requirements provides specific information for your jurisdiction.

Attendance and absenteeism

And third, attendance and absenteeism can be quite complicated in Canada. Human rights legislation is forcing employers to be more diligent with their accommodation of disabled employees and reinforces the need for to review your policies and clearly document your accommodation approach to avoid any legal liability. In this situation, employer communication is critical. This issue is discussed here.

And what about attendance issues in cases where the employer is not dealing with an employee who suffers from a disability? A few things have been suggested to address this problem:

· Establish preventive measures to include proactive promotion of employee assistance program-based employee needs

· Establish regular and formal manager/supervisor training to identify and respond to declining productivity and changes in employee behaviour

· Support managers and supervisors with data on absences so they will know when to intervene when it comes to employee absence. This includes providing appropriate and timely access to absence and disability data at the workgroup level

· Support managers and supervisors with better and more consistent return-to-work processes

Much more can be learned from other legal commentaries and articles posted in the Library section of HRinfodesk. You can also consult our reference manual the Human Resources Advisor on all of the topics listed in the poll. And if you need to implement policies and procedures, check out Human Resources PolicyPro.

By Christina Catenacci, Editor at HRinfodesk.com

Published on HRinfodesk-Canadian Payroll and Employment Law News and Developments

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