Labour code review may help worn-out middle managers
(Saturday January 15th, 2005)

Virginia Galt examines this issue in the Globe and Mail (January 3, 2005 - Page B1). Her article, "Worn-out middle managers may get protection: Labour Code review could expand reach", offers an overview of the legal and regulatory challenges posed by uncompensatee overtime. Here are some excerts from the article (copyrighted by The Globe and Mail 2005):

"As Canadians stagger under increased workloads and long hours, policy-makers are starting to heed the cries of exhaustion from mid-level managers and supervisors who are not currently covered by labour standards legislation.

Laws designed for the nine-to-five world of the 1960s do not provide adequate protection for many "overworked and overwhelmed" employees who, because of global competition and technological advances, are now expected to be available 24-7, Federal Labour Minister Joe Fontana said last month in launching a sweeping review of the Canada Labour Code, with a view to expanding its reach.

Among the issues open to discussion: Should managers and supervisors be protected by labour code restrictions on hours of work, with entitlement to overtime pay or time off in lieu if they exceed the standard workweek? Or do long hours come with the territory?

The federal inquiry comes on the heels of a Manitoba Labour Board ruling that former clothing store supervisor Sharon Michalowski was, indeed, entitled to protection under the provincial labour standards laws even though her employer, Nygard International Ltd., argued that she was a manager and had signed a contract agreeing to work "all hours required to be worked" in return for her $42,000-a-year salary.
That contract was invalid, ruled the board, which ordered Nygard to pay Ms. Michalowski more than $9,000 in back overtime pay -- a decision the company is seeking leave to appeal.

In a related development, the Ontario government rolled back previous legislation that allowed employers to schedule staff to work up to 60 hours a week without a special permit from the provincial labour ministry. Now, employers cannot schedule employees to work beyond 48 hours a week without their consent and approval from the provincial director of employment standards.

And, while supervisors and managers are excluded from this protection, Ontario labour ministry officials have made it clear that "the exemption is meant to apply only to true managers and supervisors who have responsibilities such as supervising staff, hiring and firing employees, making substantial purchases, financial control and budgeting and planning of production."

In other words, it is not acceptable for an employer to give someone a glorified title -- with no real authority -- in an attempt to do an end run around labour standards laws in place to protect such employees from exploitation, say lawyers who specialize in employment law.

Currently, Manitoba is the only jurisdiction in Canada that does not specifically exclude managers and supervisors from labour code provisions governing hours of work and overtime entitlement. In jurisdictions where they are not covered by labour standards laws, managers and supervisors are, increasingly, negotiating their own protections in individual employment contracts -- setting limits on the number of hours they can reasonably be expected to work or, when long hours are unavoidable, getting time off to recuperate....

The Canada Labour Code sets standards for 1.3 million employees in banking, transportation, telecommunications and other federally regulated industries. Prof. Arthurs has been assigned the task of balancing business needs for increased flexibility and productivity in today's intense competitive environment with the needs of employees for protection from onerous work demands.

Many managerial and professional employees work long hours by choice, Prof. Arthurs said, and just how much they should be constrained by labour standards laws is open to debate.

The presumption, until recently, has been that these high-level employees have the clout to protect themselves. This might be true at the senior executive level; less so at the middle-management level where promotions are often tied to an expectation that the candidate will put in long hours, Toronto employment lawyer Norman Grosman said in a recent interview.

"It is probably not a good way to start a relationship, to come in as a manager and say, 'For any hours I work over 44, I expect to be paid time and a half,' " Mr. Grosman said. "Your employer is probably going to roll his eyes and say, 'Give me the next candidate on the pile.' ""