Employee Payroll Class Action Lawsuits

Neufeld Legal P.C. can be reached by telephone at 403-400-4092 or email Chris@NeufeldLegal.com

ABOUT OUR CLASS ACTION LAWSUITS

If you worked in the province of Alberta, why should your pay be calculated according to the laws of another province or country? Likewise, if you worked in another Canadian province, why should your pay be calculated according to the laws of another province or country?

That is the fundamental question that is being addressed in these class action lawsuits, given that critical payroll calculations, both during employment and upon termination, are appearing overwhelmingly consistent with the employment laws and statutes of other provinces or countries, as opposed to the province where the employees were actually employed; and using the laws and statutes of another province or country would result in the employer paying less to their employees.

HOW COULD EMPLOYEE PAYROLL BE SO WRONG

How could this be possible and what is the impact to me as an employee or former employee? We can speculate as to the reasons for this happening; however, the most critical aspect would appear to be an overreliance upon payroll software that emanates from the United States of America and is viewed as largely compliant with Ontario’s Employment Standards Act.1 Thereafter, it is sold to other provinces without there being adequate legal analysis as against each province’s Employment Standards legislation, with responsibility for this legal oversight being the responsibility of the employer and not the global payroll software provider.2 And to the extent that there are province-specific aspects in the payroll software, this would appear to be confined to government remittances. Meanwhile, specifics from the provincial Employment Standards legislation, such as Alberta’s Employment Standards Code, are not being met, both in reporting and payroll calculations. Instead, the reporting and payroll calculations are premised on mathematical formulas applicable to the province of Ontario and/or the particular state in the United States of America from where the payroll software emanated. However, the prospective class members (employees) were not working in Ontario or the United States of America when they were being paid in accordance with these non-applicable employment laws and statutes. Instead, the law requires that they should have been paid according to the Employment Standards legislation of the province within which they were working, as opposed to the laws and statutes of another province or country.

WHAT DOES THIS MEAN FOR THE IMPACTED EMPLOYEES

The impact as to employees and former employees can vary significantly, given how the various factors apply in each particular circumstance, in particular due to differences between companies and employee pay arrangements. Nevertheless, it can be quite significant, with numbers being as high as $20,000 or more per year for a single employee when calculations are redone under the applicable province’s Employment Standards legislation. So, whether you are talking about $2,000 per year or $20,000 per year for a single employee, after 10 years3 that could represent either $20,000 or $200,000 that is legally earned money in our professional estimation and represents one of the key facets of these class action lawsuits. There are additional aspects, as well as distinct elements, in each of the individual class action lawsuits; however, this underlying legal premise is central to our class action lawsuits.

So, if you were employed in the province of Alberta, should you not be paid according to Alberta’s Employment Standards Code? And if you were employed in another Canadian province, should you not be paid according to that province’s Employment Standards legislation? Why than is payroll reporting and employee pay calculations being done in conformity with the Ontario Employment Standards Act or employment laws from the United States of America? That is what we are attempting to resolve, as these class action lawsuits contend that in correcting employee pay arrangements to match the Employment Standards legislation of the province where the employee was employed will reveal considerable underpayments to those employees, with the money having been fully earned according to the Employment Standards legislation of the province of their employment.

FOR CURRENT & FORMER EMPLOYEES OF COMPANIES BEING SUED

If you are a former or current employee of the defendant companies against whom our class action cases have been filed, we would like to hear from you.

As a former employee, you may believe that you are constrained by a release that was signed with your former employer following your termination; however, statutory and legal exceptions appear available for most former employees that would allow them to participate in this class action even though their former employer’s standard form of release was signed.4 Even if its simply to provide us with your updated contact information in the event that we are successful with this legal action such that you might receive what you are legally entitled to, providing us with your contact information and staying informed is to your exclusive benefit.

As a current employee, you are protected from employer retribution when it comes to pursuing your statutory and legal entitlements as an employee. Nonetheless, you may simply wish to stay apprised of this action and eventually collect on any payout that is due to yourself. It is also possible that you will be given the opportunity to ‘opt out’ of this action, meaning that you could actively choose to refuse to receive that money that is owed to yourself by statute and law (and in our professional estimation is rightfully owed to yourself), such that we ask that you first consider what is set out in the Opt-Out Notice that must be approved by the Court and it is our intention to have included explicit language as to every current employee's statutory and legal entitlement to these underpayments should they be awarded and clear protections be provided against any potential retribution or other concerns of current employees in taking money that they were statutorily and legally entitled to.

Contact Neufeld Legal P.C. by telephone at 403-400-4092 or email Chris@NeufeldLegal.com

FOR RECENTLY TERMINATED EMPLOYEES IN ALBERTA

Although we have commenced those actions listed on our website, it has become clear that they are not the only employers who are operating in violation of provincial payroll statutes and law. Based upon our ongoing research and investigations, other employers are violating the Alberta Employment Standards Code a and case law precedent with respect to their own long-running underpayment / non-payment of overtime pay, general holiday pay, general holiday pay when working, vacation pay on termination of employment, termination pay in lieu of notice and/or severance pay, in addition to other statutory and legal transgressions. While most companies might in fact be conforming to all statutory and legal payment obligations for their former and current employees, other companies clearly are not and until the specifics of your former employer have been properly investigated, there is a possibility that you were underpaid and a signed release or other legal document is not necessarily a barrier to your financial recovery. Should you have concerns as to your former employer's payment practices and the potential of your having been underpaid, contact our law firm in strict confidence.

Contact Neufeld Legal P.C. by telephone at 403-400-4092 or email Chris@NeufeldLegal.com

End Notes: 1. Although many payroll software programs may be largely compliant, in our professional estimation it would appear that they are not entirely compliant with Ontario's Employment Standards Act, and there would appear to be a need for work-arounds and manual entries to attempt to get to conformity, demanding keen legal insights into the aspects of non-conformity in the specific payroll software to meet all of Ontario's legislative requirements.

2. Reference can be made to the legal position expressed in main, as well as those in the amicus briefs, of the other global payroll software providers as to their non-assumption of responsibility for deciphering the jurisdictions specific laws and obligations in the California case of Sharmalee Goonewardene v. ADP, LLC; ADP Payroll Services, Inc.;  AD Processing, LLC.

3. Although provincial limitation periods could arguably limit the period over which employee restitution might be sought, the Courts have not necessarily looked with favour on such arguments when it comes to earned money of employees, see Fresco v. Canadian Imperial Bank of Commerce, 2020 ONSC 6098, in addition to the fact that in provincial employment standards legislation there are statutory exemptions from other statutes (i.e. limitations statutes) and the creation of employer trusts for the benefit of employees as to statutory pay which could exist for upwards of 20+ years.

4. Most provincial employment standards legislation have statutory language comparable to section 4 of the Alberta Employment Standards Code: "An agreement that this Act or a provision of it does not apply, or that the remedies provided by it are not to be available for an employee, is against public policy and void." This applies to collective bargain agreements, with many collective bargaining agreements having language that stipulates any statutory violation be corrected to bring it into conformity with the applicable statute.

IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.

The information collected about potential class members will assist counsel in prosecuting the class action and assessing what damages were suffered by the class as a whole, as well as potentially identifying other legal aspects / claims that were not previously considered. Providing the information requested does not make you the client of Neufeld Legal PC. The court will ultimately decide who will be included as a class member.