WHAT EMPLOYERS AND EMPLOYEES NEED TO KNOW REGARDING OVERTIME PAY

In Ontario, under the Ontario Employment Standards Act, 2000 an employee is entitled to receive one and a half time their hourly wage for every additional hour he or she works over a regular forty-four hour work week. Employers and employees should be mindful of their rights and obligations when it comes to overtime pay.

Which employees are entitled to overtime pay?

Not all employees can claim overtime pay even if they work more than 44 hours in a single week. Generally, overtime pay is reserved for part-time and full-time employees who do not fall under the following positions:

• managers and supervisors;

• superintendents providing services in the building where they live; and

• duly qualified or registered professionals¹ .

Where there is doubt about a person’s status as an employee, it should be noted that courts are not bound by that employee’s title. Rather, courts focus on the employee’s actual daily tasks to determine whether or not a statutory exclusion applies.

Do overtime hours need to be approved?

Many sources of conflicts between employers and employees come from a lack of information and awareness with regards to overtime pay. Policies should be developed by management and made accessible to employees to inform them about procedures for overtime hours to be approved and paid. While these policies are not fully determinative in establishing the right to receive overtime pay, they may help in protecting both the employers and employees’ interests.

Pre-emptive steps to protect both employers and employees’ interests Where there are no policies in place, employees can take the following steps when working overtime hours:

• ask their supervisor to work additional hours;

• keep copies of receipts for services provided;

• document work performed;

• save e-mails sent to third parties;

• take notes of phones calls made or received; and

• docket all hours in software used by employers.

Employers can manage an employee’s overtime pay by:

• having employees sign written agreements detailing the circumstances in which they can request overtime pay, including receiving prior written authorization by the employee’s supervisor;

• requesting that the employees track their hours in a software set up by the employer; and

• limiting the amount of work given to employees after work hours.

If you are an employee and aren’t sure if you are owed overtime pay, it can be helpful to consult a lawyer to know your rights under the Employment Standards Act, 2000 and applicable by-laws. Employers should also seek independent legal advice to avoid any potential liability for failing to pay employees who worked more than forty-four hours in a week.

1 These professions include but are not limited to: architects, engineers, lawyers, accountants, surveyors, veterinarians, chiropractors, dentists, message therapists, physicians, pharmacists and psychologists.

Karen Kernisant is a lawyer at Aubry Campbell MacLean and practices in the areas of employment and family law as well as civil litigation. For more information, please visit our website: www.acmlawfirm.ca.