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Reading and responding to emails outside of regular work hours

Reading and responding to emails outside of regular work hours

Yosie Saint-Cyr LLB., Managing Editor, HRinfodesk, published by First Reference Inc., September 2015

Does reading and responding to emails outside of regular work hours count in the calculation of an employee's hours of work? Out of 311 respondents to our HRinfodesk poll, 173 (56%) said yes, and 138 (44%) said no.

If they are business emails and they are conducting work, the answer would be yes. Checking and responding to emails outside of regular work hours could be counted as work hours, even overtime.

Why is that?

Employees are being asked all the time these days to work using their smartphones, laptops and tablets. These devices are mobile, and with the ability to connect remotely, employees can work anywhere and at any time.

When the device is provided by the employer, a lot of employees feel compelled to check and respond to emails beyond regular work hours. Employers requiring non-unionized employees, especially salaried employees, to work extra hours (beyond the legislated daily standard hours, or maximum weekly hours of work for overtime purposes) without compensation is now a common practice.

In Canada, hours of work and overtime rules provisions vary significantly across jurisdictions under employment/labour standards legislation, as well as industry or sectors. Most employment/labour standards legislation by jurisdictions establishes the standard workday, workweek and the maximum workweek in which an employee is not permitted to work. In general, legislation provides that where the standard workday or workweek is exceeded, overtime must be paid.

Overtime pay is compensation for work performed outside of a length of time (per day and/or per week), that has been determined by legislation.

Most employees are eligible for overtime pay, whether they are full-time, part-time, temporary or casual workers, students or contract workers.

Many employers believe because they pay their employees a fixed salary, they are not obligated to pay overtime hours. Being an employee on an hourly or salary basis is not criteria for entitlement and rights under employment standards legislation. They are methods of paying wages that have an impact on how the right or entitlement is calculated. For example, as stated by the Ontario Ministry of Labour, generally, if an employee's hours of work change from day to day, but his or her weekly pay stays the same, the employee is paid a fixed salary. Suppose an employee works 44 hours one week and 42 hours the next, but receives the same pay each week. That employee is on a fixed salary. A fixed salary compensates an employee for all non-overtime hours up to and including 44 hours a week. After 44 hours, the employee is entitled to overtime pay.

However, these employees, including hourly and salaried employees, may still be exempt from employment standards legislation depending on the occupation or industry sector. Certain employees have special rules or exemptions from all or certain rules under employment standards legislation. The lists of exclusions or exemptions from hours of work and overtime pay provisions are usually quite extensive. For a list of exemptions, please refer to your jurisdiction in the HRinfodesk Library, under Pay and Working Conditions, and again under Hours of Work and Overtime. You should also refer to the legislation and accompanying regulation.

Several jurisdictions give employees the right to refuse overtime work, or allow maximum hours of work to be exceeded where work is urgently required to maintain or repair the equipment or in the event of an accident, emergency or any occurrence beyond human control which imperils the life, health or safety of people or which interrupts the provision of an essential service.

The overtime rate is payable to the employees for each hour or part of an hour they work in excess of the standard hours. Most jurisdictions have established an overtime rate equivalent to one and a half times the employee's regular rate of pay. Each jurisdiction provides for a specific overtime threshold for entitlement. These include for example, in excess of 44 hours in a workweek in Ontario, or in excess of 40 hours in a workweek in British Columbia.

Employers are required to keep accurate records of hours worked (regular and overtime) and wages paid to employees. The law does not require any specific method for keeping records so employers can use any time keeping method they choose. For example, employers may have employees punch a time clock, use handwritten time sheets or use an electronic badge reader. Any method is acceptable as long as it is complete and accurate. If a complaint for unpaid overtime is filed by an employee, the onus is on the employer to establish that the employee did not work the overtime alleged.

Furthermore, several jurisdictions, subject to certain conditions, allow employers and employees to agree to replace the payment of overtime by paid leave equivalent to one and a half times the overtime hours worked; or to average overtime hours. The averaging process is performed to vary from overtime compensation otherwise required by the provincial or territorial employment standards legislation.

To control work hours, employers should include in their hours of work and overtime policy a requirement that working outside of the normal work hours stated in the policy or in the employment contract is prohibited.

In addition, overtime hours should not be mandatory. If overtime is necessary, supervisor or manager approval before the overtime is worked as well as a process to obtain approval should be required and found in the policy.

It could also be added that reading or responding to email outside of the normal workday is prohibited, and if necessary under certain circumstances, approval should be obtained. However, be cautious, as stated by Stuart Rudner, in his January 10, 2012, blog post for the Canadian HRReporter, “If an employee legitimately works overtime, they are entitled to the appropriate pay or time off in lieu thereof. An employer cannot take the position [that] the overtime was not authorized and refuse to pay for it.” […] “While the employer cannot refuse to pay for unauthorized overtime, it can discipline the employee for breaching that policy. Discipline can include dismissal in appropriate circumstances. This should discourage employees from working overtime without obtaining prior approval.”

That is why it is important to track,record and monitor employee work hours to ensure compliance with your policies.