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2. THE POLICY CUCKOO
The cuckoo bird is notable for its parasitic behaviour. Instead of building its own nest, the cuckoo lays her eggs in the nest of a bird whose eggs are a similar colour. After it hatches, the cuckoo chick kicks its foster siblings out of the nest and remains alone to be fed by its hapless foster mother.
Premium pay for overtime work is the policy cuckoo in the work time nest. The insatiable hunger of this intruder has thwarted the emergence of genuine, effective policies to limit work time.
In the U.S., the Fair Labor Standards Act of 1938 (FLSA) introduced a premium of time and a half for work in excess of eight hours a day or 40 hours in a week worked in the conduct of interstate trade. Since that time, the application of the act has been broadened and similar legislation has been adopted in other jurisdictions.
In Canada, the employment standards of most provinces require premium pay of time and one-half the employee's regular rate for overtime work. Three provinces -- New Brunswick, Newfoundland and Nova Scotia -- establish the overtime rate as being one and one-half times the minimum wage.
Popular thinking about the overtime premium seems to consistently overlook one crucial point. The intent of the law on overtime is expressed in the section limiting the daily and weekly hours of work. The overtime premium deals with exceptions to the law. It is a loophole that has somehow managed to pass itself off in the popular imagination -- seen by working people and labour activists alike -- as the very incarnation of the spirit of the law.
The overtime premium provision was meant to regulate the exceptional case. But the exception has been taken for the rule; the loophole has been taken for the whole; and all of us have been taken for a ride.