Canadian Employment Law Today

CELT Sept 4 2013:celt 467.qxd 13-09-13 10:59 AM Page 2 September 4, 2013 Ask an Expert with Stuart Rudner Rudner MacDonald, Toronto Have a question for our experts? Email carswell.celt@thomsonreuters.com. ■ EMPLOYMENT STANDARDS: Employee refuses to take vacation Question: How should an employer handle an employee who doesn't want to take her vacation? Should the employee be forced to take time off or should the employer just pay the employee vacation pay in lieu? Answer: Perhaps surprisingly, this is an issue that comes up fairly often. Statistics have shown many Canadians don't take advantage of their full entitlement to vacation each year and, in many cases, employers are content to allow the situation to continue. However, what is an employer to do when employees refuse to take vacation even after being instructed she must do so? To begin with, we must distinguish between the statutorily-required vacation and anything that has been offered beyond that. In Ontario, for example, every employee is entitled to two weeks of vacation per year according to the Employment Standards Act, 2000. I note, however, that this accrues at the end of the first year of employment. Technically, employees are not statutorily entitled to vacation during their first year of employment, though many employers offer vacation anyway. In Ontario, statutorily required 2 vacation time must be taken within 10 months following the end of the vacation entitlement period. While employment standards legislation is similar across the country, there are some minor variations. Employers have the right to determine when an employee can take her vacation. While most try to accommodate employee requests, the employer has the final say. At the same time, employers must ensure employees take their statutory vacation, or risk a finding that they have breached the applicable legislation. When an employee genuinely chooses not to take her statutory vacation time, the parties must enter into a written agreement that is approved by the Director of Employment Standards (in Ontario — other jurisdictions may vary). This does not relieve the employer of the obligation to pay vacation pay. It is, of course, common for employers to offer more than the bare minimum amount of vacation time. With respect to vacation time beyond the statutory minimum, it is open to the parties to enter into any agreement they choose. I often draft vacation clauses which provide that the employee must take her statutory vacation time within the year it accrues, and that any additional vacation time is offered on a "use it or lose it" basis. Like many HR issues, a clear and consistently enforced policy is extremely important and will help decide the course of action. ■ doing any work? Answer: Many jurisdictions in Canada operate on the basis that any overtime worked must be compensated, even if it was not requested, directed or approved by the employer. This can come as an unwelcome surprise to an employer that finds itself unintentionally on the hook for overtime pay. This is why I often advise employers to adopt a strict policy that overtime cannot be worked unless authorized and, in addition, to impose discipline on employees that insist on breaching this policy and working overtime without authorization. While this may seem to be an odd approach, imposing such discipline can be the only way to prevent unnecessary overtime. That said, an employee must truly be working in order to be entitled to overtime pay. This does not include "hanging around" and offering occasional assistance to a friend that is still working. As the question suggests, merely being physically present is not enough; the employee must be actively working. Recent cases, including class actions, have caused more attention to be paid to this issue. In some cases, employees will claim hundreds or thousands of overtime hours, dating back over a period of years. I often advise employers to adopt a requirement that employees log and submit their hours on a weekly or bi-weekly basis. By doing so, they will be in a stronger position to refute a subsequent claim that the employee has worked overtime every week for years. In this context as well, a clear and consistently-enforced policy is advisable. CELT EMPLOYMENT STANDARDS: What constitutes overtime worked? Question: If an employee hangs around in the workplace after her shift and helps a co-worker without approval from the employer, is overtime pay owed? What's the overtime threshold between being physically present in the workplace and Stuart Rudner is an HR lawyer and a founding partner of Rudner MacDonald LLP, a Toronto-based firm specializing in Canadian employment law. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He can be reached at srudner@rudnermacdonald.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013

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