metrics, reporting & financial management
Although the reference to “supervisory or managerial” work
seems clear enough, that clarity gets bogged down with the reference
to “and who may perform non-supervisory or non-managerial
tasks on an irregular or exceptional basis.” What does “on an irregular
or exceptional basis” mean?
This means that assuming an employee functions as a true manager
or supervisor, the employee cannot perform non-managerial
work on any sort of regular basis. In other words, an employee who
satisfies the requirements for being characterized as a manager or
supervisor but who also undertakes non-managerial tasks on a regular
basis will no longer be considered a manager or supervisor.
The application of this provision is notably problematic in the
quick-service restaurant industry, where managers or supervisors
will participate in non-managerial duties by covering breaks
for other employees or working to serve customers where long
line-ups are present. Given many of these tasks are considered
non-managerial in nature and managerial staff are regularly engaged
in these tasks, claims for unpaid overtime are on the rise
amongst managers who feel they are regularly performing nonmanagerial
duties.
It is important to bear in mind that the non-managerial duties
can be very limited in nature. It is not the “extent” of these nonmanagerial
duties that matter but instead whether these duties are
conducted on a regular non-exceptional basis.
PROBATIONARY PERIODS
Another challenge for employers as it relates to interpreting the
Act is with respect to probationary periods. In many cases, employers
utilize a probationary period (typically three months) in
order to confirm that a candidate or new employee is a good fit
for both the organization and the role he or she has been hired
to fulfill. Unfortunately, there is a common misconception among
employers that by simply extending the probationary period
when the employer is not completely satisfied with the probationary
employee, any terminations that are ultimately carried out
during that probationary period are exempt from the notice of termination
obligations under the Act (as well as the obligation to
satisfy the common law obligation to provide reasonable notice of
termination).
Under the Act, an employer is required to provide one weeks’
notice of termination or compensation in lieu thereof after the
employee has worked consecutively for the employer for three
months or more (but less than one year). Accordingly, and regardless
whether the probationary period is extended to four, five or
even six months, if the employer elects to terminate the employee’s
employment after three months, notice of termination under the
Act is owed to that employee.
DEDUCTIONS FROM WAGES
It is often the case that employers seek to directly recover monies
from employee wages. The Act, however, states in very clear
terms that “an employer shall not withhold from wages payable to
an employee…”
Of course, the Act goes on from there to identify certain exceptions
to this rule including an “employee’s written authorization.”
Presumably, therefore provided an employer has entered into some
AS A RESULT OF INCLUDING
MYRIAD EXEMPTIONS,
INDUSTRY-SPECIFIC
VARIATIONS AND LACK OF
DEFINITIONS FOR CERTAIN
KEY WORDS IN THE ACT,
EMPLOYERS ARE OFTEN
FACED WITH SIGNIFICANT
CHALLENGES IN MEETING
THE REQUIREMENTS.
form of written agreement with the employee permitting the employer
to withhold from wages that would satisfy the requirement.
Unfortunately, however, there are exceptions to the exceptions!
Once of the key limitations to the ability of the employer to
withhold from wages based on a written agreement is that the
agreement itself must clearly set out a specific amount or a clear
formula for the determination of the amount. In other words,
general language in an employment agreement permitting the employer
to withhold from employee wages where appropriate will
not satisfy this requirement under the Act. The written agreement
must either specify exactly the amount that may be subject
to withholding from wages or set out a formula. A blanket authorization
from the employee is not acceptable.
FINAL THOUGHTS
The foregoing examples are only a few of the myriad challenges
employers face when it comes to the interpretation of the
Act. Accordingly, employers must direct a fulsome consideration
to each applicable employment standard in the Act to ensure
compliance. n
Stuart Ducoffe is a seasoned employment and labour lawyer and one
of only a small group of employment and labour lawyers certified by
HRPA as a Certified Human Resources Leader (CHRL). He is the
founder of e2r and partner and co-founder of Woolgar VanWiechen
Ketcheson Ducoffe LLP. Attend Ducoffe’s session at the HRPA
Annual Conference, entitled “Employment Standards: The Questions
You Should Be (Afraid of) Asking,” on February 1 at 10:00 a.m.
60 ❚ SPECIAL CONFERENCE EDITION 2017 ❚ HR PROFESSIONAL