As an employer do I have to pay for all that overtime?
QUESTION: I have an employee who does a very decent job but keeps showing up early and staying late. I constantly remind her that the extra work is not required. She keeps up with her work load quite well but seems to like it too much. I am not sure the extra time is that productive. Do I run the risk of getting caught having to pay her for this extra time?
ANSWER: First, read the answer to the question above.
Next, you should hand her and all employees a policy which states, “I understand by signing this agreement that I am only scheduled to work 40 hours a week. Time in excess of 40 hours a week should not be worked unless previously approved by management. I understand that if I work in excess of 40 hours a week without it being approved ahead of time by management, I may be subject to disciplinary action up to and including termination.” If you simply have everyone sign the agreement but then let them work the extra hours, you will still have to pay.
Even with this policy, if you knew or should have known that they were working more than 40 hours, the law says you have to pay it. Enforce the policy
Ultimately, most work places have some flexibility. If people have to be late for some reason, they stay late and work the extra time. If they work a little extra on one day because of a last-minute emergency, you don’t bust a gut if their lunch is a little long another day. There is give and take.
I think it would be foolhardy to change the culture of your work place and make life more difficult for you and your employees just to avoid ever being caught having to pay for extra hours. I would just accept that once in a rare while an employee is going to catch you on this and the price of having a flexible work place where both you and your employees are kept happy is to write the cheque and move on.
As published in the Hamilton Spectator, April 1, 2013
Ed Canning is a partner practicing in the Labour & Employment Group at Ross & McBride LLP.