Wednesday, October 29, 2008

Over worked, underpaid over sexed are we?

Good Day Readers:

One of the early precedent setting cases occurred in Winnipeg at Nygard International where a management level employee claimed she could not meet the terms of her contract working a 40 hour week necessitating significant unpaid overtime. Here's a brief summary.

Clare L. Pieuk
Former Nygard Manager Wins Landmark Case For Overtime
Martin Cash
CanWest News Service
Wednesday, April 25, 2007

A former employee of Nygard International won $11,000 in overtime pay, a decision that could see managers across Canada be paid overtime. The Winnipeg-based women's fashion manufacturer and retailer, learned last week its final appeal to the Supreme Court of Canada was dismissed with costs. When Sharon Michalowski resigned as a regional retail supervisor in 2003, she claimed for 280 hours of overtime pay. She received rulings in her favour from Manitoba's Employment Standards Branch, Labour Board and Court of Appeal. Nygard argued each time that Ms. Michalowski signed an agreement her $42,000 annual salary "was inclusive of all hours required to fulfill" her duties. Her lawyer, Garth Smorang, argued Nygard had agreed anecdotally to give her time off in lieu of pay.
© National Post 2007

Lawsuit Seeks OT For Bankers - CIBC Targeted
Jim Middlemiss, Financial Post

Wednesday, October 29, 2008

Class-action overtime lawsuits took an interesting twist yesterday with the filing of a $360-million suit against CIBC World Markets Inc. claiming pay on behalf of highly paid, white-collar employees, such as stock analysts, investment bankers and financial advisors.

Employment lawyers say the growing number of overtime lawsuits sends a warning to employers that they need to address their overtime policies around salaried workers.

Rob Bayne, a lawyer at Filion Wakely Thorup ... Angeletti, said, "I have no doubt that there are going to be additional class actions for issues related to salary and overtime."

Kevin Coon, a labour lawyer at Baker ... McKenzie, added that the regulation governing who is exempt from overtime laws in Ontario "hasn't been amended in quite some time."

He said the rules "were cobbled together over the years" and don't reflect today's workplace, where professional employees work long hours in exchange for lucrative pay plans.

But Henry Juroviesky, one of the lawyers who filed the suit, disagreed, saying, "The law has to protect those that are either unable to protect themselves or have extremely uneven bargaining power."

He said investment banks are full of young workers who will "do anything in order to please their employer." They are "being stepped on" and companies are "squeezing them for every waking hour of work. You don't have to be a coal miner to have protection under the [Ontario] Employment Standards Act."

Michael Brown, a former senior analyst who earned a base salary of $50,000 and provided administrative support for syndicated loans, said his employment contract with CIBC World Markets required him to work 40 to 45 hours per week. However, he claims he had to work 60 to 70 hours to achieve goals set for him by management and was never paid overtime.

Mr. Brown, the proposed lead plaintiff, claims there are other "employee categories that were required to, and expected by management and defendant to work overtime hours in order to complete job requirements without getting overtime pay," including analysts, investment bankers, investment advisors and support staff.

A CIBC spokesman said, "We intend to defend this action vigorously. Our overtime policy is clearly defined, exceeds legislative requirements in Canada and is easily accessible. It contains a clear process to resolve any questions or concerns an employee may have about overtime.

Under our policy, where overtime is requested or required by CIBC, overtime is paid. We believe that this action is unnecessary given our clear policy and process to resolve employee issues internally."

CIBC is already fighting a $600-million overtime suit involving bank tellers. Scotiabank and CN Rail are also facing multi-million-dollar overtime lawsuits. The Big Four accounting firms have all settled overtime claims with their employees.

Richard Nixon, a labour lawyer with Davis LLP, said, "Employers think that because someone is paid a salary they are not entitled to overtime pay. [That's] wrong."

In Ontario, employers can require an employee to work 44 hours a week before they have to pay 1.5 times their hourly rate. A regulation sets out which jobs are specifically exempt from the overtime provisions. It's mostly certified professionals, such as doctors, lawyers, engineers and accountants. Managers are also exempt. Everyone outside of that list is entitled to be paid overtime. Moreover, employees are limited to working 48 hours a week and employers must ask the Labour Ministry for an exemption to that rule and the employee must agree to it, even if they are being paid over time.

Mr. Coon said employers need to review their employment contracts with salaried workers who work long hours to ensure the remuneration covers some aspect of the overtime they are expected to work, otherwise employers could be on the hook for more.


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