On overtime losses

Those readers who follow my law blog will already be familiar with this week's news about the Saskatchewan Party government's attack on overtime pay for retail workers. But I'll take some time to assemble the full story here.

Historically, a "day" for the purpose of calculating overtime for Saskatchewan workers has been defined as any consecutive period of 24 hours. All Saskatchewan workers have been entitled to overtime if they are required to work more than 8 hours in any such period.

As part of its response to the Saskatchewan Party's employment law review process, the Retail Council of Canada wanted to change the definition of a "day" for the purposes of calculating overtime pay. (Unfortunately, the actual submission - along with everything else associated with the massive consultation process which resulted in a wholesale revision of Saskatchewan labour and employment law - has been wiped from the Ministry's website. But a summary of the RCC's position can be found in its followup submission here.)

The RCC wanted a "day" redefined to mean only a calendar day (or any other single 24-hour period set by an employer). That means that a worker could be required to work up to 16 hours out of 24 - say, a 4 PM-12 AM shift one day and an 8 AM-4 PM shift the next - without receiving a nickel of overtime pay.

The government declined to act on that submission in actually drafting the new Saskatchewan Employment Act (SEA).

Like the previous Labour Standards Act, the SEA explicitly states that for the purposes of the calculation and payment of overtime, a "day" means "any period of 24 consecutive hours". And nothing in the new Employment Standards Regulations - which were released without debate and with minimal consultation, but would at least have provided some public notice of planned changes - alters that definition or its application in any way.

In other words, the Ministry didn't offer any warning whatsoever that it planned to slash overtime pay for retail employees. And as late as October 2014, the Ministry published its new employment standards guide for employers (PDF) - which confirmed at page 19 that the existing rules governing "short-shifting" (as the RCC calls multiple shifts in a 24-hour period) hadn't changed.

But while the Wall government didn't make any change in the law or even offer any public notice that the Ministry might change its position, it directed the Ministry's staff to apply the RCC's interpretation to retail workers - rationalizing that the SEA was supposed to offer more "flexibility" to employers in cutting overtime pay even if if offered no authority whatsoever to change the law. And while that direction wasn't offered until December 12, staff were instructed to apply the RCC's interpretation to all hours worked after April 29, 2014 - the day the SEA was proclaimed in force.

In effect, the Saskatchewan Party secured passage of the SEA by assuring workers that it wasn't attacking employment standards. But it's since started telling employer groups, along with the public servants charged with enforcing the law, that the proclamation in force of the SEA means that all bets are off when it comes to employment standards.

As noted on my law blog, I'll be working on gathering more information both about this particular interpretation (which only became public because the RCC decided to brag about having won secretly what it couldn't win through a proper democratic process), as well as any other changes the Ministry has made in employment standards or other worker rights since the SEA came into force. But the clear takeaway for now is that Saskatchewan workers have reason to worry that the agency charged with enforcing their rights is receiving secret orders to attack them instead.

Update: I'll clarify a couple of points which I made on the law blog, but haven't yet noted above.

First, the change in interpretation didn't actually change the law: theoretically, employees should still have been able to claim the overtime provided for under the SEA. But they'd have had to fight the Ministry's interpretation through an adjudication and appeal process, representing a significant barrier for employees who don't have time or money to fight over the rights which are supposed to be protected by law.

And second, the Ministry did abandon its "pilot" interpretation last week, but only after it had been brought to light.