Employment & Labour

Answering emails after hours can be considered overtime

Responding to emails after hours counts as work, and can result in an entitlement to overtime pay, Toronto employment lawyers Natalie MacDonald and Stuart Rudner write in the Globe and Mail.

In many cases, the article says, organizations will hand out smartphones and similar devices without implementing policies regarding when employees are required to check their email. This can result in employees believing they are expected to check email when off duty, which can expose employers to overtime claims, it continues.

StuartRudner“Contrary to popular belief, entitlement to overtime pay has nothing to do with how an individual is paid; salaried employees are just as entitled to overtime pay as those paid by the hour,” write Rudner and MacDonald, founding partners of boutique employment law firm Rudner MacDonald LLP. “By default, all employees are entitled to overtime pay or time off in lieu thereof.”

In the Globe article, MacDonald, author of Extraordinary Damages in Canadian Employment Law, and Rudner, author of You’re Fired! Just Cause for Dismissal in Canada, say overtime is not mandatory.

“An employee cannot be forced to work overtime, except in the rarest of circumstances,” they write. “Conversely, if an employee works overtime, even without authorization, they are entitled to be paid for it. The employer cannot refuse to pay on the basis that the overtime was not authorized. However, if a policy required authorization for overtime, the employer could discipline the employee for breaching that policy, which should discourage employees from abusing the situation.”

Rudner also participated in a recent online chat with Globe Careers on the topic of overtime rights.

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