Canadian HR Reporter

24 www.hrreporter.com S P O N S O R E D To avoid claims and payments for unpaid overtime, businesses must ensure their work-from-home policies recognize and reduce this risk. Employers should implement methods to control overtime costs, including written overtime policies, training and enforcement. Averaging agreements and overtime agreements, if permitted by applicable legislation, can also limit the amount of overtime claimed. Finally, in most jurisdictions, employers are required to maintain accurate records representative plaintiff claimed $250 million in general damages and a further $100 million in punitive damages. And there was the 2020 Fresco v. Canadian Imperial Bank of Commerce in the Ontario Superior Court of Justice where CIBC was found liable for breaching its overtime obligations to approximately 31,000 current and former employees across Canada. While damages have yet to be determined, the claim seeks $600 million in damages. Due to the COVID-19 pandemic, more employees are working from home and are largely unsupervised, so the frequency of unpaid overtime class- action lawsuits is likely to continue. A key challenge is effectively monitoring employees remotely. At-home employees may work more hours than their regular schedules, which, with the lack of supervision, gives rise to the perfect storm for class-action lawsuits of this nature. In the last decade, Canada has seen a growing number of class-action lawsuits. So, with the COVID-19 pandemic, it is critical for businesses to understand potential liabilities and to take proactive steps toward reducing the risk of potential lawsuits, write lawyers at McCarthy Tétrault TREND STOPPER: PROACTIVE COMPLIANCE TO REDUCE RISK OF CLASS-ACTIONS of hours worked, including regular and overtime hours. Accurate records are key to defending against overtime claims. Misclassification Class actions alleging the misclassification of employees as independent contractors also come with potentially significant liability as workers claim that they have been denied certain employment standards rights, including overtime, vacation, holiday, termination and severance. In addition, misclassification claims may carry further consequences including claims for unremitted taxes and workers' compensation insurance premiums. Recent years have given rise to an array of misclassification class-action lawsuits. These include, but are not limited to, misclassification of door-to-door sales agents (see the 2016 Omarali v. Just Energy in Ontario Superior Court), lawyers within a workplace (see the 2017 Sondhi v. Deloitte in Ontario's Superior Court) and gig economy workers. Moreover, as working from home becomes more widespread, it is possible that supervising employees in some workplaces has become more centralized. This may lead to ancillary classification issues regarding managers and supervisors who are no longer engaging in the managerial and supervisory functions of their roles. Even if such changes to their roles are only temporary, it may result in disputes about their proper classification. More employees are working from home and are largely unsupervised, so the frequency of unpaid overtime class- action lawsuits is likely to continue. the last decade, Canada has seen a growing number of class-action lawsuits. As businesses face sweeping and unprecedented challenges in the wake of the COVID-19 pandemic, a further increase is expected. For Canadian employers, class-action lawsuits have largely been related to unpaid overtime; however, the scope of claims is expanding. Now, more than ever, in the wake of the COVID-19 pandemic, it is critical for businesses to understand potential liabilities and to take proactive steps toward reducing the risk of such potential lawsuits. Unpaid overtime Recent years have seen a proliferation of class-action lawsuits for unpaid overtime that can come with significant liability. For example, there was the 2016 Fulawka v. Bank of Nova Scotia in Ontario Superior Court, a revised settlement of approximately $39.3 million that was approved where the E M P L O Y M E N T L AW IN

• Cover