Before the internet, there were clear indicators on whether you were at work – If you were physically present at work, then you were at work. This made defining the roles and responsibilities of every single employee easier. Everyone knew when their overtime pay would kick in if they had been at their workplace for longer than eight hours in a day. With the permeation of telecommunication technologies such as Zoom, Skype and GoToMeeting into the workplace, the indication as to whether an employee is at work is much less clear.
The issue does not stop at figuring if someone is at work but also when. Are employees required to be in at work at 2 am to fix critical systems? Are they given overtime pay? Should technology employers be allowed to not pay overtime to their employees? These questions are left unanswered in Vancouver and British Columbia’s struggle to grow as a technology centre.
British Columbia excludes high-technology employees from Employments Standards Act (ESA)
“High-technology professionals” and “high-technology companies” in British Columbia are excluded from hours of work, overtime and statutory holiday provisions of the Employment Standards Act (ESA). This exclusion is meant to promote business in the high technology industry through lower operating costs, given that high technology professionals are some of the most highly paid professionals. The Employment Standards Act is designed to provide basic minimum terms and conditions of employment applicable to all employers and employees, providing basic floors and a fair competitive playing field where the rules are the same for everyone. (Government of British Columbia, Exclusions, High Technology Companies – Regulation Part 7, Section 37.8).
Running a technology firm requires a large yearly investment into employee salaries; look at any “top 10 degrees to get paid” article. High-technology professionals demand a high wage, as many of these employees have post-secondary degrees and are highly skilled. The high costs of high-technology employees have been recognized by the British Columbia provincial government. In July 2016, the government released a fact sheet that outlines, “The hours of work provisions of the act… hours free from work each week, as well as the overtime statutory holiday provisions, do not apply to ‘high technology fields’”. This statement essentially means that employees that match the high technology professional designation do not have access to the same basic worker’s rights as other workers. This policy was enacted by the provincial government to drive more businesses to work in British Columbia since 1999.
The government of British Columbia is not alone in using similar policies to reduce the costs of operating in their provinces; other, notable provinces include Ontario and Alberta. In general, these policies help the employer because ultimately software professionals are like other professional groups and make a high enough wage to justify the limiting of basic rights such as overtime pay.
Employers demand more of their high-technology employees, for the same pay
The ease of commuting that telecommunication technologies afford has given managers and employers the ability to ask employees to be online within a moment of them asking. This is generally because of either 1) an approaching release for a build for a client 2) to fix critical systems or 3) to fix small patches before they are automatically released. All these scenarios fall under the umbrella of time-sensitive issues that need to be fixed almost immediately.
Such incidents are not few; a large majority of the software industry runs on two-week sprints that end with an update shipped out to clients. The goals of each sprint may vary in difficulty but generally, the more updates software engineers can fit into a sprint the more profitable that sprint is. This is because employers pay the engineers a set salary that does not change with overtime which means that the employers’ costs are generally fixed, and it is up to the employer to maximize their revenue. This inevitably leads to work overload for the engineers. Suddenly, a 40-hour workweek turns into a 50-60-hour work week.
The health and social costs that high-technology employees – and the society – eventually pay for such demands
While it is easy to see how exclusion from the Employment Standards Act (ESA) benefits the high-technology employer and the high technology industry, where does this leave the employees? For a set salary, employers may, at their discretion, require employees to work longer hours, including weekends and statutory holidays. Given the irregularity of the work itself (e.g. critical systems can go down anytime and might need someone to immediately fix them) it is sometimes necessary to have these employees work after work hours and during weekends and holidays. However, without additional compensation for their work, this creates a subsidy for the employer but denies the employees fairness and decency in how they are compensated (Fairey, 2017).
Without industry set guidelines and expectations about work hours and overtime pay, it becomes harder for a high technology employee working under the exploitative and discriminatory nature of the exclusion from ESA to achieve a work-home-life balance. Knowing that they can be called in anytime to fix a failure in a critical system or be expected to work on weekends and statutory holidays to deliver a project on time, it makes it harder for the employee to engage in activities that would allow them to relax outside work and achieve a work-life balance.
The lack of an opportunity to disengage from work could lead to burnouts, making the employees less productive and efficient in the long run. The cost of exemptions is borne not only by employees not covered by the act who suffer lost income and insufficient time off; there is a social cost to health and safety resulting from long hours of work (Fairey, 2017)
It is imagined that high technology professionals do not suffer the same level of exhaustion as professionals in other traditional occupations do, or oddly, they do not have to balance the same work-home life challenges and obligations. This is because it is imagined that all high-technology workers are young, childless and happy to work late hours and camp-out at work. Such imaginations, myths and misconceptions make the exclusion from ESA acceptable. However, all this exclusion does for the high-technology professionals is denying them the right to receive pay for work beyond an eight-hour day and 40-hour week, even though their lives outside work are similar to lives of those in other traditional professions.
The employers don’t mind the exclusion from ESA. It is their gain, after all
Exclusion of high-technology employers from the Employments Standards Act represents an unreasonable subsidy for employers. At their discretion, high-tech employers can summon their high-technology employees to work outside work hours, during weekends and on statutory holidays without extra compensation. This out-dated exception has remained in place since it was introduced because employers have successfully been able to argue for the unpredictable and irregularly scheduled nature of the job, which sometimes requires employees to work less on certain times and more on others. For example, a high-technology employee may be required to work for more than 10hrs a day as a project delivery deadline approaches without overtime pay.
By categorizing its employees as “high-technology” professionals, companies can use this loophole to avoid paying its employees overtime pay. In addition, the BC government has created an incentive to categorize employees as such by subsidizing such companies to a tune of $500 million a year through tax credits, to attract more high-technology companies to the province. These subsidies pay for a significant portion of their labour costs (CBC News, 2019).
Let us give high-technology employees equal basic employment rights
The chief recommendation is for organizations and professionals to begin a dialogue discussing individual responsibilities of the job, and how these can be scheduled to avoid overtime. Part of the discussion should involve evaluating the negative impact the demands of the high-technology workplace have on the employees. If the responsibilities of the workplace require an employee to work on weekends and during statutory holidays, the employers should consider formulating formal policies that grant employees bonuses or overtime pay for such work. While every employer’s situation might be different, meaningful change in the industry starts at the bottom, involving the high-technology employees from the very beginning.
Conclusion
The world is becoming more dependent on technology, which often makes it necessary for high-technology employees to work overtime or outside regular work hours. The world as we know it is more dependent on “always-on” services more than ever before. Failures in software systems can affect millions of people, with real impact. With an outage of important services, people can’t book their flights, they can’t pay their bills and they can’t video call their friends. Even worse, transportation and critical health systems depend on running software whose failure could lead to loss of life (Atlassian, n.d)
Whether a company is experiencing a major bug, capacity issues, or software systems are down completely, customers and internal teams who depend on these systems and services expect an immediate response. The unpredictable schedule of work in the high-technology industry, coupled with the fact that software engineers are regarded as some of the highest-paid professionals, support the argument of exempting these high-technology professionals from overtime pay.
However, it is paramount to remember that these high-technology professionals have lives outside work too. They have family and friends outside work and deserve the same employment rights granted to professionals in traditional industries such as banking. It’s high time that high-technology workers received their full employment rights, and that they are consulted when formulating policies that directly affect them and their work environments. It is important to recognize that the high-tech sector is a workplace like any other. And the workers in that industry need and deserve the same protections.
References:
Exclusions, High Technology Companies – Regulation Part 7, Section 37.8. (1999). Retrieved from https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/esr-part-7-section-37-8
Animators win battle for overtime pay against Vancouver studio | CBC News. (2019, March 25). Retrieved April 12, 2020, from https://www.cbc.ca/news/canada/british-columbia/sausage-party-animators-vancouver-studio-overtime-1.5070598
(n.d.). Retrieved April 12, 2020, from http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96113_01
Fairey, D. (2017, March 24). Opinion: Time to give high-tech workers back equal basic rights. Retrieved April 12, 2020, from https://vancouversun.com/opinion/op-ed/opinion-time-to-give-high-tech-workers-back-equal-basic-rights/
Atlassian. (n.d.). Pros and cons of different approaches to on-call management. Retrieved April 12, 2020, from https://www.atlassian.com/incident-management/on-call