Employment Alert
June 2007
Fasken Martineau DuMoulin LLP
Hours of Work and Overtime Litigation on the Rise
In 2004, hours of work related litigation
rose dramatically in the United States and,
coincident with the numerous lawsuits
taking place south of the border, Ontario’s
provincial government implemented
massive changes to the hours of work and
overtime provisions contained in the
Employment Standards Act, 2000 (the
“ESA”).
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Employers in Canada have yet to
experience the same degree of wage-hour
litigation as their American counterparts.
To date, hours of work and overtime
issues in Canada have generally arisen as
ancillary issues in the context of wrongful
dismissal litigation. This week, however,
wide-spread media coverage began
concerning the Canadian Imperial Bank of
Commerce’s alleged failure to properly
compensate employees for overtime.
While the number of employees involved
in this litigation remains unknown, the
estimated value of the claim against the
bank is $600 million. This week’s media
coverage will undoubtedly increase the
public’s awareness of hours of work and
overtime entitlements and will likely open
the door to similar litigation in Canada.
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In addition to the threat of overtimespecific class action lawsuits in Canada,
since the 2004 changes to the ESA,
Ontario’s Ministry of Labour has publicly
announced its intention to dramatically
increase investigation and enforcement
efforts in connection with hours of work
and overtime claims. Facts and figures
recently published by the Ministry
indicate that the Ministry has directly
targeted employers for the investigation
and enforcement of ESA overtime and
hours of work provisions. Between April
2002 and April 2004, the Ministry
targeted less than 500 inspections in
Ontario. Between April 2004 and April
2005, this figure rose dramatically during that period, the Ministry targeted
almost 2500 inspections of Ontario
employers and overtime and hours of
work investigations were amongst the
top-five compliance issues targeted by
these inspections. Moreover, of the almost
16,000 complaints filed by employees
between April 2004 and April 2005,
overtime and hours of work complaints
were also amongst the top-five claims.
Hours of work and overtime provisions
vary widely across Canada as well as
across sector, industry and type of
employment. While some provinces allow
for alternative work-arounds such as
providing time in lieu of overtime pay and
entering into averaging arrangements,
these solutions may not be suitable in
Fasken Martineau DuMoulin LLP
Employment Alert
every case. The management of overtime and hours
of work issues is therefore rapidly evolving into a
complex and resource-consuming endeavour.
We regularly assist our clients in both the federal
and provincial sector to assess their risk of exposure
to overtime and hours of work litigation with a view
to ensuring statutory and contractual compliance as
well as developing effective strategies for the
management of these obligations. We have specific
expertise in conducting internal audits, training
managers and supervisors and drafting and
reviewing policy manuals and handbooks in this
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regard. Any member of our department would be
pleased to assist you if you would like to discuss
these issues in more detail or if you would like to
specifically address your organization’s compliance
concerns and objectives. For more information,
please feel free to contact either:
Maria Giagilitsis
416 868 3544
[email protected]
Ian Campbell
416 868 3540
[email protected]
This publication is intended to provide information to clients on recent developments in provincial, national and international law. Articles in this bulletin
are not legal opinions and readers should not act on the basis of these articles without first consulting a lawyer who will provide analysis and advice on a
specific matter. Fasken Martineau DuMoulin LLP is a limited liability partnership and includes law corporations.
© 2007 Fasken Martineau DuMoulin LLP
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