Generally, most employees in Ontario are entitled to receive overtime pay when they work more than forty-four hours in one week. Section 22(1) of the Employment Standards Act, 2000 (the “ESA”) requires that, “an employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each work week.”
This applies to employees regardless of whether they are working full time, part time, if they are students, temps or casual workers. This also applies to employees regardless of whether they are paid an annual salary or an hourly wage. If an employee is salaried, the overtime rate is calculated by dividing his or her weekly salary by forty-four to arrive at an hourly rate of pay.
While the majority of employees in Ontario are entitled to receive overtime pay for all hours worked beyond forty-four hours per week, some workers are excluded from the overtime provisions in the ESA. These excluded employees are listed in Regulation 285/01, and include, but are not limited to:
- Persons whose work is “supervisory or managerial in character”
(Generally, managers and supervisors are excluded from the overtime pay entitlement; however, this will vary on a case-by-case basis, depending on the true nature of their role and whether such functions are only performed on an irregular or exceptional basis);
- Persons employed as the superintendent, janitor or caretaker of a residential building, in which they reside;
- Information Technology professionals; and,
- Duly qualified practitioners of architecture, law, professional engineering, public accounting, surveying or veterinary science.
To assess whether an employee falls within the scope of these overtime exclusions, it is necessary to consider the role in which the employee is working, or the nature of their work in practical terms. While a title may be suggestive of the “true nature” of an employee’s role, it will never be determinative. For example, if an employee’s job title is “manager”, but she has no one reporting to her and has no authority to set schedules, or to promote or discipline other employees, then she might not in fact be exempt from the ESA’s overtime provisions.
It is the employer’s responsibility to pay overtime if an eligible employee works more than forty-four hours per week.
Lessons for Employers
Employers can avoid a lot of potential problems by addressing hours of work and overtime questions directly and clearly in both the employment contracts provided to employees and in workplace policies. Employers must be aware, however, that while a policy regarding overtime may be a useful tool, it is not determinative of an employee’s entitlement in this regard. The law is clear: if an employee performs work beyond forty-four hours per week, he or she will be entitled to receive one and one-half times her regular rate of pay, unless a legal exception applies as outlined above.
Lessons for Employees
Employees who routinely find themselves working outside of their regular working hours (sending and responding to emails, for example) may well be entitled to receive overtime pay for this work. Employees should speak with their employers about their expectations for being available beyond the workday and carefully track the hours they spend working when they are not at the workplace.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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