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Short Changing Class Actions
One new type of class action that Monkhouse law has taken a lead on is Vacation pay/Statutory Holiday pay ‘shortchanging’. In these cases the employees are often deprived of vacation and holiday pay on their full compensation, often getting vacation pay solely on a ‘base pay’ and not on commissions, bonuses.
Historical Types of Employment Law Class actions:
In the past class actions have consisted of a number of categories. The following is an excerpt from the paper “Categories of Employment Class Actions” by Andrew Monkhouse and Kevin Wisnicki, presented at the Law Society Of Ontario Employment Law Summit, 2018):
Misclassification Cases: Employee vs. Contractor
Misclassification cases deal with workers who have been labelled and treated as contractors, not employees and by extension denied the complement of benefits that employment standards legislation provide to employees. Misclassification cases have become more prevalent in Canada in recent years. Depending on the size of the class, employers can be exposed to significant liability for unpaid statutory benefits such as overtime pay, vacation pay and public holiday pay, etc.
Overtime Class Actions: “Off the Clock Cases” and Manager Misclassification Cases
In recent years, there have been a host of unpaid overtime class actions. These cases do not involve the misclassification of employees as contractors but rather involve the systemic denial of statutory benefits (often overtime pay) to those already counted as employees. These cases fall into two categories: 1) “off the clock” cases and 2) manager misclassification cases.
“Off the Clock” Cases
The so-called “off the clock” cases do not turn on whether an employee is eligible for overtime pay but rather if they were denied overtime pay or other employee benefits on a systemic basis.
Manager Misclassification Cases
By contrast, manager misclassification cases, unlike the “off the clock” cases, revolve around the question of whether a class of employees are caught by the managerial exception to overtime pay. In Brown v CIBC14 , for example, the class was comprised of employees who were classified as managers by CIBC and as a result were not paid overtime. The court found that each class members’ job duties varied such that whether any given class member would be caught by the managerial exception to overtime required individual analyses. In other words, the court reasoned that whether or not one class member was caught by the managerial exception to overtime pay, would not answer the same question for every other class member. Accordingly, the proposed class action was not certified.
Constructive Dismissal and Mass Termination
Although not as prevalent as class actions relating to overtime or statutory benefits, employment class actions sometime involve claims for wrongful dismissal damages. These can be difficult because generally reasonable notice becomes quickly an individualized investigation.
Sexual Harassment and Systemic Discrimination
Employment class actions involving claims of sexual harassment and discrimination are on the rise in Ontario and throughout Canada. The heightened social consciousness of these issues, along with the elimination of limitation periods for civil claims relating to sexual assault has undoubtedly had a positive influence in galvanizing individuals to commence related class actions. As such recent class actions have focused on an employer’s failure to prevent systemic sexual harassment