KFActs: Important Information about Overpayments
By Rachelle Hollaway, Member-at-Large
Over the past few years, several faculty members have been asked to pay back money due to overpayment errors. Some common errors include workload percentage errors, leave calculation errors, additional work contract errors, benefit overpayments and so on.
Many faculty members have had money deducted from their pay without knowledge or consent.
If someone in HR or Payroll has contacted you about an overpayment or has told you that money will be deducted from your pay, please contact me at firstname.lastname@example.org. There may be significant calculation errors in the amount you are being asked to pay back. You also have important rights under the Employment Standards Act (ESA) that HR must uphold.
Section 21 of the Employment Standards Act explains that employers “must not, directly or indirectly, withhold, deduct or require payment of all or part of an employee’s wages for any purpose.”
On the surface, section 21 of the ESA seems to imply that errors made in pay are not recoverable by the employer. However, this clause has been tested by the courts in Health Employers Assn. of B.C. v. B.C. Nurses’ Union, 2005 BCCA 343. In that case, the Court of Appeal wrote:
“The employer is still able to recover overpayments from employees where that employee agrees to the deductions, or where a statute or collective agreement expressly authorizes the employer’s unilateral action. Where no such agreement or statutory authorization exists, the employer has the option of recovering overpayments in other ways such as pursuing a grievance, or bringing a claim against the employee (para 67).”
This means that the employer must seek the consent of an employee to pay back any monies owed. If the employee does not consent, the employer has the right to grieve the employee through its union and/or garnishee the employee’s wages via the courts.
Many people assume that an error made by someone in payroll means that an employee should not have to pay back any money, especially as some of the amounts can be quite high. Unfortunately, this is not the case, and the employee must pay back the amount or else risk court proceedings that can result in garnisheed wages. That being said, you have the right to choose how you want to pay back any amount owing: lump sum, monthly payments over months or years, and so on.
The KFA has worked with our Employer (ER) to create a process that preserves the rights of faculty under the ESA. While this process is sometimes followed, there are often errors and omissions in that process. Further, the Employer has sent faculty members Overpayment Letters without copying the KFA.
Here is what is supposed to happen:
- The faculty member receives an Alert Letter about an overpayment. The Alert Letter is cc’d to the KFA, and the letter explains that the faculty member needs to work with the KFA to resolve the overpayment. The KFA is involved as exclusive bargaining agent in any decisions regarding pay. In other words, your KFA representatives are your legal representatives in discussions of pay with the Employer.
- The faculty member receives an official Overpayment Letter with an explanation and breakdown of the amount owed and a Consent Letter. The faculty member is asked to consult with their KFA rep, decide on a repayment schedule, and sign a consent letter allowing the ER to deduct money from their pay. The KFA, as exclusive bargaining agent, must also sign the consent letter.
Since this process began, the KFA has found consistent errors in the Employer’s requests for overpayments. In some instances, it is found that the faculty member is actually owed money.
The truth is that the vast majority of overpayment requests from the Employer have been calculated incorrectly. For that reason, we ask that you contact us if you have been sent an Alert Letter or an Overpayment Letter and the KFA was not cc’d on that correspondence.
If you have any concerns at all about the above or any other overpayment issue, please don’t hesitate to contact email@example.com.