I lifted that title from a presentation at the recent Davis LLP employment law update, because I don’t think I need to improve on it. The question seems simple, but I’m certain that it has got many employers and human resources departments wishing the handy devices had never been invented! (Okay, maybe they’re not that concerned.)
The presentation was on “Navigating the pitfalls of hours of work and overtime claims”, and asked such pertinent questions like:
- Does checking work email on the weekend or during a vacation count as work?
- Does travel time count as work?
- Does work start when employees arrive at work, or when they are ready to work?
- When an employee is expected to be available to take calls on weekends, does the entire weekend count as work?
- Does optional or voluntary training count as work?
Essentially: “In the new workplace, when does ‘work’ begin and end?”
Surely, some of these questions sound familiar? And I suspect we’ll be discussing them for a long time yet.
You’ll have to look at the hours of work and overtime standards in your jurisdiction for specific information. But the presenters from Davis offered this important tip: employers are obligated to pay employees for work they perform, whether the employer “permits” the work or not, for example, work outside of regular working hours.
They also offered some other helpful clarifications, including:
- Regular commuting time is not work
- Work-related activities that happen before or after a shift will only count as work if they are “integral and indispensable to an employee’s primary job duties”—for example, if employees are required to show up 15 minutes before their shifts, that’s work; and the time it takes to put on a uniform is work, too
- Business meetings conducted or arranged by an employer are work whether during or outside of regular work hours
- Mandatory training is generally considered work, regardless of when it takes place
I hope these tidbits of info make things a little clearer! But obviously you’ve got to investigate your organization’s hours of work practices and talk to a lawyer to make sure you’re complying with the law (and avoiding costly lawsuits).
The presenters suggested the following basic course of action to set you on the right track:
- Investigate your existing “hours of work culture”; this means:
- Developing a policy on employees working outside regular working hours (forbidding the practice is a good idea)
- Making sure that you don’t explicitly or implicitly allow your employees to work voluntary overtime without compensation
- Ensuring that your policies comply with relevant employment standards legislation
- Educate employees on policies and make sure they understand and follow them
- This includes explaining the consequences of non-compliance
- Document employee claims of hours worked; this includes:
- Retaining accurate records
- Implementing an early warning system
- Performing hours of work and overtime audits
Yosie discussed how “After hours access to work may lead to overtime claims” last year, and HRinfodesk subscribers can find lots more information on the topic by searching for “hours of work and overtime”.
How do you deal with employees working overtime or outside of regular working hours? A recent commenter mentioned that her employer requires management to take their Blackberry phones with them “everywhere”, and as a result, “no one actually gets a real vacation”. That sounds like pretty suspicious behaviour to me. How about you?
First Reference Human Resources and Compliance Editor