What Counts as Work in the Blackberry Era? Navigating the Pitfalls of Hours of Work and Overtime Claims

Davis LLP Employment & Labour Law Conference

October 26, 2012

For many employees, the boundary between “working time” and “non-working” time has become increasingly fluid. Because of developments in cell phones, email, laptop computers, text messaging, and videoconferencing, many employers and employees are no longer tied to a single workplace or a set work day. Work takes place just about anywhere and anytime: in the car, in the early morning and the late evening, at the summer cottage, or on the airplane taking the employee to a business meeting.

While technology is rapidly re-shaping the workplace and the work day, employment standards legislation tends to lag behind. Each Canadian jurisdiction has employment standards laws which regulate hours of work and establish overtime thresholds and rates. The basic principles underlying these laws are generally straightforward. In most jurisdictions employers are permitted to establish a regular work day of no more than 8 hours and in some jurisdictions averaging agreements are permitted. In British Columbia, for instance, the Employment Standards Act establishes a basic limit of 8 hours in a day and 40 in a week, after which overtime must be paid. In Ontario, the Employment Standards Act, 2000 provides that no employer shall require or permit an employee to work more than 8 hours in a day and 48 hours in a week, with overtime pay required after 44 hours. In Alberta, the Employment Standards Code sets the limit at 8 hours in a day and 44 hours per week, after which overtime must be paid.

Hours of work laws may appear straightforward, but applying these laws is increasingly complicated in our changing economy, where working time and non-working time are harder and harder to track. The following are just a few of the questions facing employers today:

  • Does checking work emails on the weekend or during a vacation count as “work”?
  • Does travel time count as “work” for which an employee is entitled to be paid?
  • Does work start when an employee arrives at work, or when the employee is ready to work (ie. after the employee’s computer is booted up, or the employee has donned required clothing and equipment)?
  • If an employee is expected to be available to take calls on weekends, does the whole weekend count as “work” time?
  • If an employer makes “optional” training available to employees after their regular hours of work, does the training time count as “work”?

These and other questions are addressed in this paper, originally presented at the Davis LLP Western Canada Employment & Labour Law Conference in Vancouver on October 26, 2012.  Download the full version here.