Posts Tagged ‘unpaid overtime’

The psychology of exploitation: unpaid overtime

November 14, 2010

Many companies try to get around the Employment Standards Act. I remember being told, in person, something different from what was in the employee’s manual. When I asked why, I was told that oh, they just wrote that stuff in the booklet because of the law.

Nice. Those pesky laws will make you write down just about anything.

In short, I got the very strong impression that I would be encouraged, no doubt “for the sake of the team”, to work unpaid hours outside of my shift.

It’s usually hard to get all your work done on certain days without staying longer than the end of the shift. If you do, it will be unpaid labour, never mind unpaid overtime. And if you don’t, your coworkers are very likely to resent you and blame you for the work being late, the client getting upset and the higher-ups taking it out on the staff, instead of blaming the company for breaking the law, putting everyone in an unacceptable situation and playing everyone off against each other.

I’m angry at this kind of set-up. If you refuse to help companies disregard labour laws, you are “not being flexible” and have “a negative attitude”. Meanwhile, just how “flexible” is the company itself by refusing to pay for the additional hours staff is working? The company is the one stealing time.

Every employer should get this: a deal is a deal and the law is the law. This applies to the corporation, just as much as it does to anyone else. Maybe I don’t like those pesky laws either. Should I just help myself to the hardware? Just how “positive” is a company that places its multi-million dollar comfort above the low-wage survival of its employees? How many companies out there nickel-and-dime their employees by sanctioning them if they’re five minutes late, even if those very same people stayed late to finish something the day before?

Should you resist your exploitation, your coworkers are also encouraged to see you as “selfish”, “difficult” and “not a team player”, someone who is “causing them problems”, because they will now face the pressure to pick up the slack created by the company’s refusal to adapt, with its multimillion dollar budget at its disposal, and its insistence on making its low-wage employees do all the adapting at their own expense instead.

If all of us just said “no”, the company would have to back down and understand that a) work will be late; or b) if the client gets upset too often about this, staff will have to be paid overtime, with or without the client paying for it, since it’s a question of keeping customers and besides this, more work means more orders and more orders mean more income, which clearly will pay for expenses. Ergo, there is no victim in this case, and no excuse.

Should you go along with your exploitation, then you are “responsible” and “reliable”, of course… in addition to being exhausted, resentful and stressed out. Perhaps the company and your colleagues will appreciate you more, but your pocketbook, health, family and friends will not.

Obviously, these interpretations of staff behaviour can have a tremendous impact on people’s future, so how “voluntary” is the unpaid labour supposed to be? Should the company decide you are rocking a little too hard, it is 100 per cent certain they will come up with a million reasons for your dismissal which, ostensibly, have nothing to do with the issue of overtime hours. Of course. The employer defines the terms of employment. They add anything they like. You can be found to infringe on a dozen rules no one has bothered to enforce for the past 20 years. Therefore, legal provisions against retaliation can be difficult to uphold, at least in a court. Retaliatory measures are not, however, difficult to illustrate through media exposure, of which there really ought to be much, much more. Just the chronology of someone saying something about a labour law issue, then starting to get negative performance reviews, should be a clear tipoff to anyone.

In Ontario at large: law and practice

It isn’t the first time I’ve been in this type of situation and many have been even worse. One of the “top five” in the bad boss sweepstakes did a lot of things, including trying to discourage me from taking a lunch break. I put a copy of a booklet on Ontario Labour Laws, with the 30-minute break requirement highlighted in yellow, on my desk so it was highly visible to everyone. I was never bothered again, at least not about that. However, he still insisted on making me work an average of 60 hours a week or more, all additional hours unpaid, until I was so exhausted I went on stress leave and never came back. At the time, I still didn’t realize salaried employees are entitled to overtime pay as well as hourly-paid workers. This was the case even under the Harris Conservatives. It’s certainly the case now. If I didn’t know, how many others don’t?

I’m not alone. Far from it. According to the Lang Michener labour law firm website, approximately 20 per cent of employees in Canada work overtime, working around nine extra hours per week on average. Half of these people don’t get paid for the overtime they put in. These are the official findings. I’m betting there’s a lot of unofficial abuse that no one is calculating and that can’t be determined.

Moreover, as the firm points out, “there is a widespread misconception that salaried workers are not entitled to overtime pay. According to the Human Resources Professional Association of Ontario, 44.75% of organizations said their non-management, salaried employees are expected to work overtime without pay. Whether an employee is paid on an hourly or salary basis is not criteria for overtime entitlement. Salaried employees have the same entitlement to overtime as hourly employees.”

However, confusion arises because of exceptions to overtime pay protection, which apply to certain professions (lawyers, doctors, architects, landscapers, engineers, IT professionals) or “employees in a supervisory or managerial position”. Maximum number of hours is not the same as entitlement to overtime pay. Even if employees agree to work more than the 48 hour maximum, up to a 60 hour maximum, they are still entitled to overtime pay.

One of the biggest sticking points is reclassifying employees as managerial. Just when, legally, is someone a manager? As it turns out, apparently not just because their company gives them the title: “According to the Human Resources Professional Association of Ontario, 29.85% of organizations did not understand the legal definition of “manager” for overtime purposes.” Supervision of other employees and the authority to hire, fire, promote, transfer or discipline employees are key criteria, but not the only ones. Managers must have additional powers, such as the power to make decisions about company policy and planning, as well as budgeting and purchasing power, amongst other criteria.

Another big exception is contract employment. Some companies hire individuals as subcontractors to avoid the headaches of payroll. If they pay a fixed sum per contract term, they can also avoid paying overtime, or even avoid paying minimum wage. According to a Star article in 2007, “one in four self-employed earn incomes of $20,000 or less.” However, as noted by Leanne E. Standryck of L B & W, contractual employees must pass a four-point test in order to be considered independent and not employees. At issue are: 1. the extent to which the company controls the performance of the individual’s services; 2. whether the individual owns the tools and equipment used in rendering the services; 3. whether the individual has a chance at profit; and 4. whether the individual has a risk of loss. Should a company be judged an employer, there are costs to trying to circumvent legislation this way. Still, too many employees are unaware of their rights; and, judging from employer practices, too many of the latter don’t seem to understand there is a clear test a judge can apply.

Remedies to exploitation

Class action lawsuits against firms such as KPMG, BMO Nesbitt Burns, CIBC and others over unpaid overtime have made headlines in the last few years. However, the case against the CIBC was shot down and this decision was upheld. It is now being appealed.

Lawsuits are not the only means to target employers who try to violate the law. It’s also possible to file a complaint with the Employment Standards Branch of the Ministry of Labour. Despite the ceiling on possible compensation ($10,000), any given complaint opens the door to more investigation: “Government Employment Standards Officers looking into one employee complaint have the authority to investigate the employer to see if there are any further violations against other employees, even if no other employees have made a complaint… Of course, the Ministry of Labour also conducts surprise workplace spot-checks, both at random and in response to anonymous tips.”

Violation of the Employment Standards Act in Ontario can lead to a fine of up to $100,000 for a first offence, and $250,000 and $500,000 for second and third offences. Each offender was named, so that at least potential employees can check to see if the firm offering them employment will be an opportunity, or a nightmare. The Ontario Ministry of Labour also issues a press release with every conviction and names the offending employer. Plus, if nothing else, the investigation takes time and effort. It probably costs the company about as much as, say… paying fir overtime.

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