Overtime Exempt Or Non-Exempt? Issue May Be Certified As A Class Action

In a very important decision, the Ontario Superior Court of Justice in Rosen v.BMO Nesbitt Burns Inc.  has certified a class action launched by investment advisers (IAs) at BMO Nesbitt Burns (BMO) for overtime pay. While this is not the first overtime class action to be certified in Ontario, it is noteworthy given that the issue involves the alleged misclassification of the IAs as managers or as otherwise exempt from overtime under the Employment Standards Act, 2000 (ESA).

Brief Commentary

Key in the reasons for certifying the class action was the fact that the proposed class of employees was defined more narrowly than in previous cases (e.g. Brown  v.  CIBC). This allowed the Court to find that it could determine whether the employees were misclassified as exempt employees on a common basis because the job functions of the IAs were similar. Other cases have found that a class action was not the appropriate procedure because the employees' eligibility for overtime