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
McCarthy Tétrault 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
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
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
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
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.
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