Court Certifies Class Action For Technical Writers' Unpaid Overtime.

The California Superior Court has certified a class action lawsuit for unpaid overtime and missed meal periods brought on behalf of and technical writers both currently and formerly employed by Sun Microsystems and SeeBeyond Technology Corporation, (Hoenemier v. Sun Microsystems, Inc.). According to US news reports, the Hoenemier lawsuit marks the first time a class action for overtime claims has been certified for "technical writers" in California. Up until now, these individuals were commonly understood to be exempt from the right to receive overtime pay under California's Labour Code. That code contains an exemption for individuals employed as "computer professionals."

McCarthy Tetrault Notes: Potential For Similar Lawsuits In Canada?

Under Canadian employment standards laws, most employees are eligible to receive overtime pay, subject to limited exceptions, most notably for employees who primarily perform supervisory or managerial functions. As a general principle, employees in Canada whose work involves the design, development, implementation, operation or management of information or computer systems are eligible to receive overtime pay.

Employment standards laws in B.C., Nova Scotia, Alberta and Ontario provide a limited exception to this general principle, which exempts individuals employed as "technology professionals." Although the specific definition of "technology professional" varies among these provinces, these exemptions are generally similar to the "computer professional" exemption at issue in the Hoenemier lawsuit.

In Canada, any exception to an employer's general obligation to pay overtime pay will be narrowly construed. Not all individuals whose work involves information or computer systems fall within the "technology professional" exemption applicable in B.C., Nova Scotia, Alberta and Ontario.

In order to avoid lawsuits similar to the Hoenemier lawsuit, employers in these provinces should ensure that they do not cast too broad a net in exempting employees whose work involves information or computer systems from the right to receive overtime pay. The specific definition of "technology professional" in each province should be carefully reviewed. Employers in all other provinces should ensure that such employees are eligible to receive overtime pay, unless they fall within another specific exemption provided under applicable employment standards legislation.

Employment-Related Class Action Lawsuits Are Becoming Increasingly Commonplace The Hoenemier lawsuit reflects an increasing trend towards employment-related class action lawsuits in Canada and the US. In Canada, overtime class action lawsuits have been filed against several high-profile institutions this past year, including CIBC, The Bank of Nova Scotia and KPMG. Each of these lawsuits seeks millions in damages for unpaid overtime in relation to thousands of current and former employees. If certified, these lawsuits are expected to serve as a springboard for similar class action lawsuits targeting large employers in Canada.

In light of this increasing trend, employers must adopt strategies to assess their current exposure and to minimize future exposure. Such strategies should include, at a minimum, conducting (i) a comprehensive audit of current overtime policies for all employees to determine whether overtime policies are compliant with all applicable employment standards legislation, and (ii) an analysis of whether these overtime policies have actually been followed in practice. If they are not already doing so, managers should be required to keep accurate records of all hours worked by employees, including authorized overtime. Overtime policies should be regularly reviewed to ensure ongoing compliance with all applicable employment standards legislation, and to ensure that such policies are followed in practice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Trevor Lawson

McCarthy Tetrault LLP 

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