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Stuart Rudner will take part in an online chat with Globe Careers on Wed., March 26 at 1 p.m. ET to answer readers' questions about technology and overtime.

The next time you reach for your BlackBerry on your night stand, consider whether you should be claiming overtime. And if you are an employer sending late-night e-mails to staff, you may get more than you bargained for. Employees and employers should be aware that responding to e-mails counts as work and can result in an entitlement to overtime pay.

Many organizations give out BlackBerrys, smartphones and similar devices without consideration for whether particular employees need them and without implementing policies regarding when they are required to check their e-mail. The result is that employees believe they are expected to respond to e-mails when off duty, which can expose employers to overtime claims. Having a clearly drafted policy regarding use of mobile devices will clarify the obligations of both parties. Obviously, these policies will vary depending upon the nature of the position, but if consistently followed, the policy can be an effective tool to dispute the allegation that employees were expected to respond.

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. By default, all employees are entitled to overtime pay or time off in lieu thereof. Certain categories of workers are exempt, but the exemptions are based strictly upon job duties, with the most common being that of managers or supervisors. The person's title doesn't matter – it's the nature of their duties that counts. For example, a "manager" who routinely engages in non-managerial work will be entitled to overtime pay.

For employees who work sporadic hours, employers should consider implementing averaging agreements. These agreements allow the employer to average a specific employee's hours of work over a period of several weeks for purposes of calculating overtime pay. By way of example, an employee in Ontario who works 48 hours one week and 30 the next would not be entitled to overtime under an averaging agreement. Without it, however, the employee would be entitled to four hours of overtime the first week.

Overtime is not mandatory. An employee cannot be forced to work overtime, except in the rarest of circumstances. 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.

Even if an employer complies with legislation, liability may still arise if the employer makes excessive demands of their employees. It can even become an issue worthy of extraordinary damages. For example, in the case of Zorn-Smith v. the Bank of Montreal, a bank employee had worked for 21 years when she was asked to accept a position for which she had no qualifications. After her repeated requests for assistance in handling her workload were ignored, the employee suffered burnout and required a medical leave of absence.

Once she returned, instead of providing relief, the bank removed two of her three staff, and hired a completely inexperienced person. Consequently, in addition to a full day's work, she worked from 9 p.m. to 1 a.m. most nights, and on Sundays, to prepare for the upcoming week. One year later, the employee applied for disability leave. However, after allowing a brief period of leave, the bank insisted that she return to part-time hours, despite recognizing that there were "work issues." The employee never returned to work, and the bank took the position that she abandoned her employment.

At trial in the Ontario Superior Court of Justice, the bank was found liable for displaying a callous disregard for the health of its employee, which constituted flagrant and outrageous behaviour. The court found that it was the overwhelming workload which caused the employee's mental suffering, and that the bank was the primary cause of her disorder. Extraordinary damages were awarded as a result.

Therefore, employers should not expect, nor should employees feel compelled to provide it.

Natalie MacDonald and Stuart Rudner are co-founders of the employment law firm Rudner MacDonald LLP. Ms. MacDonald is the author of Extraordinary Damages in Canadian Employment Law. Mr. Rudner is the author of You're Fired! Just Cause for Dismissal in Canada.

Online chat

Join Stuart Rudner for an online chat with Globe Careers on Wed., March 26 from 1 p.m. to 2 p.m. ET to talk about technology your overtime rights at work.

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