Are managers entitled to overtime pay for on-call duties?

NINE TO FIVE: SPECIAL TO THE GLOBE AND MAIL, PUBLISHED FEBRUARY 28, 2016

THE QUESTION

As a salaried municipal employee with a manager title, I had to participate in on-call coverage for emergency management. This required me to be at my workplace within one hour of notification, for the duration of my on-call period, day and night.

The on-call period was typically two out of every four weeks. During these periods, I was extremely restricted in my personal activities, including not being able to leave be out of town. I received no compensation for the time I was required to be on call. I understood that disciplinary action could follow for failure to consistently respond within expectations. In contrast, on-call technical staff were paid for on-call time, with the result that my staff routinely made more income than I did.

The on-call requirement was not in my job description nor in my employment contract.

Did Ontario labour law allow my past employer to schedule managers for on-call work without compensation?

THE FIRST ANSWER

George Cottrelle, Partner at Keel Cottrelle LLP, Toronto

We assume that, as a manager, you were not in a trade union. Your rights to overtime pay, if any, were governed by the Ontario Employment Standards Act, which sets out minimum statutory entitlements for employees, as well as any provisions in your employment contract. We also assume that technical staff were governed by a collective agreement, which contained provisions for on-call pay.

Both hourly and salaried employees are entitled to overtime pay (generally, after 44 hours a week) under the act, unless specifically exempt. Persons whose work is supervisory or managerial are specifically excluded from the act’s overtime provisions. Accordingly, as a manager, you were not entitled to overtime pay.

The act has specific provisions when on-call hours are deemed to be work. performed by an employee. On-call time where the employee is not performing work, but is required to remain at the place of employment, is deemed to be work performed. Where the employee is not at the place of employment, and is simply ready for a call to work, on-call time is not deemed to be work. performed for an employer.

In addition to the act, your employment contract and any policies or practices of your employer applicable to managers would also determine whether you were entitled to additional compensation. Your employer’s position was that on-call coverage was a requirement of your job, without compensation, and we assume there was no policy or practice to the contrary.

We note that on-call coverage was introduced after you began your employment, and as such, potentially constituted a unilateral change to a term of your employment contract. A unilateral change by an employer, without consideration, to a fundamental term of the employment relationship does not have to be accepted by an employee, and may constitute constructive dismissal.

THE SECOND ANSWER

Eleanor James, Communications consultant, James Thinkstitute, Toronto

Two weeks is a long time for such a short leash, especially without compensation. The Employment Standards Act is clear on what is paid work for managers in your situation. Some employers make fundamental contractual changes as a means of constructive dismissal, a way of bullying an employee to quit instead of letting them go. Is it possible that’s what was happening here?

The working relationship sounds poor, too, and what a waste it is when that happens. It’s not uncommon with the mix of unionized and non-unionized workers, and it requires great management to balance both sides. Unfortunately, that’s not always on hand. Often it’s better and easier when people just put their cards on the table rather than trying to weasel out a change and betting the employee won’t fight it.

Employers would benefit from taking into account the consequences of their actions on fairness, morale, lawsuits and the organization’s reputation. A little finesse goes a long way.

How can I talk to HR when the director is the owner’s wife?

NINE TO FIVE: THE GLOBE AND MAIL, PUBLISHED NOVEMBER 22, 2015

THE QUESTION

I have a problem with the owner of the company I work for that should really be resolved by Human Resources. But how do you handle that situation when the director of HR is the owner’s wife?

THE FIRST ANSWER

Eleanor James, Communications consultant, the James Institute, Toronto

The conflict of interest in the company’s managerial structure has you between a rock and a hard place. You want to resolve the problem rather than take a more rash or destructive path, and that’s good. Do some homework and contact the Human Resources Professionals Association (HRPA) for assistance, which will be directed by the specific nature and scope of the problem. They might also direct you to an independent HR professional who could be a third party.

When you have the information, arrange to meet with your HR director, which is the proper channel and a no-fault move for you. Prepare yourself well for the meeting; think carefully about what you want to say and how you’re going to say it, including the problem, how it’s affecting your work and any suggestions you have. Choose your words carefully, use non-accusatory language and take out any emotional tone. Write it down and rehearse it out loud, a few times. All this preparation will calm you and greatly reduce your chances of inflaming the issue. You never know, the HR director might see your point or even agree with you. If not, there are lots of resources available based on what you want to do.

THE SECOND ANSWER

Eileen Dooley, Vice-president, Gilker McRae, Calgary

Having a problem with any owner of a business presents limitations on what you can do. Having family members in key leadership roles poses additional issues.

Perhaps, even though the two work together, they may have a separation with respect to work. The director of Human Resources may very well be approachable in discussing difficult matters regardless of her relationship with the owner. Some companies even have non-retaliation policies, which are supposed to protect employees who bring up concerns with the company.

If the concern has to do with a matter where Human Resources would typically be brought into the fold, such as harassment, discrimination, or any violation of human rights or workplace law, it is the right thing to do to bring it to the attention of someone who can invoke change. You would naturally start internally, but you may also want to consider bringing these types of matters to the attention of your local employment standards office.

If neither of these two options is viable, you may want to ask yourself if it makes sense to move past the issue, or walk away entirely.

One conversation, Two Ways – Spot the Huge Difference

He started it! The Franco vs Brantley Exchange

Except for the cat and baby videos, social media squeals with outrage and accusation. You can still hear it, almost, even when your devices are turned off.  But an incident jumped the shark and I read about in today’s newspaper.

The actor James Franco’s Broadway debut was as George in Steinbeck’s Of Mice and Men.  How lucky to debut in such a poignant role with Chris O’Dowd as Lennie. Franco’s performance was reviewed by the New York Times as “respectful”, “generally inert” and that both actors “wear their archetypes like armour”. Then, like a hair tweezed from a nostril came the comment that Franco’s performance was “understated to the point of near invisibility”. 

That was the initial volley. Then came Franco’s return on Instagram posting the review from Variety which called his performance “flawless”.  Franco went on to say – get this – that the reviewer Ben Brantley and the NYT “had embarrassed themselves. Brantley is such a little bitch he should be working for Gawker.com instead of the paper of record”. Insulted now are Franco, the NYT, Brantley and Gawker.com.

I didn’t see the performance so I can’t comment on whether it was ‘nearly invisible’ or ‘flawless’. But I would suggest that performance critique or any kind of critique can be offered filled with sharp objects or with all the intelligence and experience possessed by the reviewer to recommend something, or not. In this case I felt whooshed back to grade 8, the meanest place of all. 

Sadly, Franco did the same thing back to Brantley and put some spin on it to drive in those sharp objects. According to him Brantley is a “bitch” AND “an idiot”.

Look at what these two professional men have created! If Brantley had considered a less vicious approach Franco might have paid more attention and possibly learned something. He might say in 20 years’ time, “It was Ben Brantley of the NYT who said a really important…” That will not come from this. And Franco could have remained silent and relaxed in the hammock of his “flawless” review.  Social media doesn’t hurt people’s feelings, people do. Don’t keep picking at the scab, let the wound heal over and away you go. Not sure what Chris O’Dowd did but I haven’t heard anything, and I won’t go looking for it either. 

There, that’s better.

The Business of Happiness – Where’s the Fun?

Special to The Toronto Star

“In an era when more is more, there’s an extravaganza of ways to make yourself happy. Except it’s not working, this “cult of optimism.”

Happiness is big business these days.

In an era when more is more, there’s an extravaganza of ways to make yourself happy — affirmations, vision boards, the power of positive thinking, to name a few.

And who doesn’t want to be happy?

Except it’s not working, this “cult of optimism.” Even the well-intentioned self-help movement seems to glisten with snake oil.

Happiness, it seems, isn’t something you can run to ground and then shout “gotcha.”

And there’s not much cultural support for happiness, that very thing we’re after.

The two-headed beast called Marketing and Advertising is never quiet. The goalposts of aspiration keep moving. Beauty standards require blond hair with extensions, too-long acrylic nails and massive plastic knockers, though how those fit into a size zero is anybody’s guess. It’s not called “keeping up with the Joneses” anymore, but that’s what it is — conformity by a longer name.

Having the latest mobile device or computery thing is a pricey demand and the only way to be cool: be with us or get out of the way. And who can be happy dealing with giant corporations when you’ve crashed, or want to make a change? Really, it’s my fault? Only a stiff drink or a hot bath makes that better. We’re even surrounded by disdain in the media — all those television shows with people behaving so horribly it makes your jaw drop.

The truth is, not much looks like fun, and shopping and pretending just aren’t buff enough for the heavy lifting happiness takes.

But a new approach to happiness is on the horizon. Take Oliver Burkeman. Even the title of his book — The Antidote: Happiness for People Who Can’t Stand Positive Thinking — is a breath of fresh air.

After researching the work of psychologists, philosophers and some self-help gurus, he concludes that “it is our constant effort to eliminate the negative — insecurity, uncertainty, failure or sadness — that is what causes us to feel so insecure, anxious, uncertain or unhappy.”

Instead of finding this depressing, “it pointed to an alternative approach, a ‘negative path’ to happiness that entailed taking a radically different stance toward those things that most of us spend our lives trying to avoid. It involved learning to enjoy uncertainty, embracing insecurity, stop trying to think positively … be willing to experience more negative emotions — or, at the very least, to learn to stop running quite so hard from them.”

Not so black and white then.

This Is How: Help for the Self by Augusten Burroughs echoes Burkeman, though it’s more of a motorcycle ride. “Sometimes you just feel like s—. Telling yourself you feel terrific and wearing a brave smile and refusing to give into ‘negative thinking’ is not only inaccurate — dishonest — but it can make you feel worse.”

And in Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America, Barbara Ehrenreich includes her own experience with cancer. “Positive thinking seems to be mandatory in the breast cancer world, to the point where unhappiness requires a kind of apology … ”

What a relief! This rediscovered wisdom is that life has to do with balance. Pretending that bad doesn’t exist is wasted effort. We’ve all been there and will be again, wiggling through life from happy, to neutral, to sad. Rinse, repeat. Life’s like that and the trick is in how you manage it, how expert you get with the wiggle.

There’s nothing stopping you from being positive, or you can be a curmudgeon if the situation warrants. Instead of trying to jolly it away, when you or someone else says, “I’m in a bad mood,” you could lighten up. You can do things that make you feel good. You can do things that make others feel good. Have some fun.

There, that’s better.


See the article here: The Business of Happiness