Canadian HR Reporter

www.hrreporter.com 11 "You can't just allow a system that's designed to record all actual hours of work to be satisfied by simply assuming that scheduled hours were the hours that were actually worked." Effectively, CIBC instructed employees to only record extra hours of work that had been pre-approved, says Barrett. "The bank simply didn't have in place an institution-wide mechanism to ensure that overtime hours worked were recorded, and that meant that in many, if not most, branches, the time worked simply wasn't recorded." Lessons for employers Employers have to think seriously about preventing hours and monitoring hours that they don't intend to pay for — especially with more people working remotely, says O'Connor. "Employers should be vigilant to adopt and monitor systems that record when their staff is working outside of the confines of the concrete building that the business is usually conducted from… Employers have to be aware that people are working strange hours." Employers should be examining their overtime policies both in terms of "That is 100-per-cent false and this case confirms that… If someone works overtime that's not approved, you have to pay them." Record-keeping lacking CIBC's record-keeping efforts around overtime were also deficient and contravened the code, said Belobaba in his decision. "While actual hours may have been recorded for some employees at some branches on some occasions, there was no system to ensure this was done consistently across all branches. In the vast majority of cases, the only hours recorded were the regular hours and the approved overtime hours… This resulted in inaccurate payroll records, which, in turn, made it possible for all employees to be compensated in accordance with the code. Case law tells us that the failure to keep track of hours worked by employees 'effectively permits' employees to work overtime." The bank should be recording the hours that were worked by employees every day and not assuming, or defaulting, to regularly scheduled hours, says O'Connor. entitlement and record-keeping to make sure they're onside with both the Canada Labour Code and provincially regulated employment standards, says Barrett. "We now have a decision that [shows] they're at risk of finding that they've failed to compensate employees the overtime they not only deserve to be paid but are legally required to be paid." This decision is also a reminder that it doesn't matter how someone is paid, whether it's hourly or by salary, by default everyone should be given overtime pay unless they fall into one of the exempt categories, says Rudner. And if employers don't properly record people's hours of work — even if it's a white collar job or a professional services firm — there's not only the risk of breaching legislation, he says, "but, more importantly, the employer is then open to a claim for overtime where the employee may track their own time but the employer has no record to refute any claims of the hours that were worked." And if an employer becomes aware of unauthorized overtime, it should speak with the employee to find out why they are working those hours, says Rudner. If it's a matter of a heavy workload, their manager should assess what is realistic and adjust the download if necessary. But if it appears the overtime is not necessary, then the employee should be warned that any unauthorized overtime will result in discipline, he says. "That's another thing people get up in arms about… but that's the only recourse available — you cannot say you're not going to pay them for the time they worked." CHRR "The bank didn't have in place an institution- wide mechanism to ensure that overtime hours worked were recorded." Steven Barrett, Goldblatt Partners

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