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In short, overtime, which would be paid as a matter of course at the office, will less likely be quickly paid to employees working remotely which is also seen a form of wage theft.
Another issue, overlooked by employers and employees, are the many conversations most employees have in a day “off the clock”, for example, in responding to a call or email after their regular hours. If they are for business purposes, that’s part of their work hours and legally must be treated as such, including as overtime.
Employees should best keep a record and inform their employer if they wish them to be accounted for, so lieu time or overtime pay can be agreed to. It’s fair to say that few employers are monitoring and paying for such calls as overtime pay even though they are required to. That failure will be keeping my firm’s class-action group busy, on behalf of employers and employees alike.
The reality is that many employees are working overtime for which they are not paid and that is exacerbated, just as is time theft, due to the absence or limits of time tracking. Although most employees are paid for their time, when an employer cannot personally vouchsafe for the employees’ additional hours, particularly if they see no increase, and possibly a decrease, in productivity, they are loathe to pay. Employees wishing to ensure payment for their time should keep track and send their employer their time sheet on a weekly basis.
Employers wishing to avoid a class-action lawsuit for overtime pay, particularly from their remote workers, should have written policies, signed off by employees, prohibiting overtime without a written sign-off by the management. Although that will not protect employers who are willfully blind to their employees’ increased hours, it is more difficult for an employee working remotely to argue that the employer was aware of all of the hours they were working.
Got a question about employment law during COVID-19? Write to me at firstname.lastname@example.org.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.