Ka-Ching! Bank Work­ers Cash Out on Class Ac­tion

Herizons - - Nellie Grams - By Janet Ni­col

Sco­tia­bank em­ploy­ees won an im­por­tant vic­tory in a re­set­tle­ment of a class-ac­tion suit over un­paid over­time in March.The re­set­tle­ment di­rectly af­fects 1,600 work­ers and could po­ten­tially af­fect thou­sands more fe­male bank work­ers across Canada. It’s a story mak­ing quiet head­lines on the busi­ness pages of Canada’s newspapers, and its im­pact on the fe­male-dom­i­nated bank­ing in­dus­try looms large.

The prece­dent-set­ting case was in­sti­gated in 2007 by Cindy Fu­lawka, a per­sonal bank­ing rep­re­sen­ta­tive at a Sco­tia­bank branch in Regina.The state­ment of claim sought $250 mil­lion in gen­eral dam­ages for her and hun­dreds of other Sco­tia­bank work­ers across Canada, plus a fur­ther $100 mil­lion in punitive, ag­gra­vated and ex­em­plary dam­ages.

Fu­lawka had al­most 20 years of bank­ing ex­pe­ri­ence at branches in Saskatchewan and On­tario when she ini­ti­ated the ac­tion. Un­der the head­ing “Cindy’s Story” posted on the class ac­tion suit’s web­site (www.bn­sun paidover­time.ca), Fu­lawka wrote, “I was not up­set over work­ing hard.Women are used to work­ing hard.What up­set me was the bank re­fus­ing to pay me over­time.”

Fu­lawka said she was com­pelled to work over­time to meet the per­for­mance re­quire­ments of her em­ployer.“If I had not met my as­signed goals, I would have re­ceived neg­a­tive per­for­mance ap­praisals. I sought over­time pay from the bank, but it was a fu­tile quest.”

Hun­dreds of other Sco­tia­bank em­ploy­ees, who had claimed they were de­nied over­time pay while be­ing as­signed more work than could be com­pleted within their stan­dard hours, joined the class ac­tion. The courts sided with the claimants, and in 2014 Sco­tia­bank paid ap­prox­i­mately $18.7 mil­lion to some 600 em­ploy­ees.

But the le­gal ac­tion wasn’t over.In March 2016, a sec­ond set­tle­ment, in the form of a de­ci­sion by On­tario Su­pe­rior Court Jus­tice Ed­ward Belob­aba, or­dered Sco­tia­bank to pay an ad­di­tional $20.6 mil­lion to a fur­ther 1,600 class mem­bers whose orig­i­nal claims had been par­tially or fully re­jected by their em­ployer.

David O’Con­nor of Toronto law firm Roy O’Con­nor LLP says Sco­tia­bank has been mak­ing ad­just­ments to its over­time pol­icy since the firm be­gan le­gal ac­tion on be­half of the work­ers.“I sus­pect they will con­tinue in this vein,” O’Con­nor said.“The big­ger ques­tion is, how will this in­flu­ence other em­ploy­ers? I think the set­tle­ment and re­set­tle­ment will lead to other em­ploy­ers pay­ing closer at­ten­tion to the hours of work of their em­ploy­ees.”

Ac­cord­ing to O’Con­nor, many em­ploy­ees have mis­con­cep­tions about work­ing un­paid over­time.It is com­monly be­lieved, for ex­am­ple, that if you are on salary you are not en­ti­tled to over­time pay, and that if you want to get ahead you shouldn’t com­plain about un­paid over­time.Em­ploy­ees who are not in man­age­ment po­si­tions how­ever, are legally en­ti­tled to over­time.Be­sides, O’Con­nor said, “It’s the right thing to do.”

Dara Fresco worked at a CIBC branch in On­tario.She took the is­sue of un­paid over­time to Roy O’Con­nor LLP just be­fore Cindy Fu­lawka did.The re­sult was an even larger class ac­tion suit in­volv­ing more em­ployee po­si­tions than the Sco­tia­bank claim, such as tell­ers.Fresco’s class-ac­tion suit is still be­fore the courts.(See Her­i­zons, win­ter 2007.) Fresco, along with more than 31,000 em­ploy­ees work­ing at 1,000 CIBC branches, is claim­ing $600 mil­lion in dam­ages for un­paid over­time.

O’Con­nor says the CIBC class ac­tion in par­tic­u­lar is the first national class ac­tion of its kind in Canada.CIBC em­ploy­ees (and em­ploy­ees in other com­pa­nies) can still con­tact his firm if they have ex­pe­ri­ences to share about un­paid over­time.

While women are no longer de­nied man­age­rial po­si­tions in banks, as they were decades ago, most con­tinue to fill bot­tom rung po­si­tions, where un­paid over­time, a lack of job se­cu­rity and sub­stan­dard wages and ben­e­fits re­main com­mon.Mean­while, Canada’s five big­gest banks are among the coun­try’s most prof­itable com­pa­nies.

Un­paid over­time was the is­sue that sparked a now-his­toric or­ga­niz­ing drive by the in­de­pen­dent fem­i­nist union Ser­vice, Of­fice and Re­tail Work­ers Union of Canada (SORWUC) in the 1970s.Em­ploy­ers in some of the big five banks re­acted by fir­ing or­ga­niz­ers and rais­ing wages in branches where em­ploy­ees hadn’t signed union cards.Their story has re­cently been de­picted in a book by the Graphic His­tory Col­lec­tive, called Drawn to Change and re­leased in April.

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