Saturday, January 08, 2011

Ontario Employment Law: Overtime Pay

Section 22 of the Ontario Employment Standards Act provides that in most circumstance, an employee who works more than 44 hours in a given week shall be paid at least one and one-half times his or her regular rate of pay for overtime hours worked.

Specifically, Section 22 of the Act states:
Overtime threshold

22. (1) 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 week or, if another threshold is prescribed, that prescribed threshold. 2000, c. 41, s. 22 (1).

Averaging

(2) An employee’s hours of work may be averaged over separate, non-overlapping, contiguous periods of two or more consecutive weeks for the purpose of determining the employee’s entitlement, if any, to overtime pay if,

(a) the employee has made an agreement with the employer that his or her hours of work may be averaged over periods of a specified number of weeks;

(b) the employer has received an approval under section 22.1 that applies to the employee or a class of employees that includes the employee; and

(c) the averaging period does not exceed the lesser of,

(i) the number of weeks specified in the agreement, and

(ii) the number of weeks specified in the approval. 2004, c. 21, s. 6 (1).

When an employee is terminated by an employer, that employee has a statutory right to be paid for his or her outstanding overtime hours, provided that the overtime claim is not barred by any applicable limitation period. This is in addition to any other claims an employee may have to compensation under the Act or at common law.

Of course, like so many rules of law, there are some notable exceptions. For example, a regulation of the Act provides that the overtime provision does not apply to a person employed whose "only work is supervisory or managerial in character". While this is a recognized exemption from Section 22, it is a narrow one since most employees, including many managers, cannot be said to only perform supervisory functions.

A case in point is Bala Bay Inn v. Turnbal. There, the Ontario Labour Relations Board assessed the duties of a security manager, concluding as follows:
In the present case, the Board is similarly unable to find that the claimant's only work is supervisory or managerial in character. The claimant was required to perform security services himself and to perform janitorial duties on a regular basis. He was responsible for overseeing the work of other security staff while he himself engaged in security monitoring. The evidence was that the claimantwas required to perform patrolling functions while overseeing the work of other security staff, that during the overnight shifts he was required to perform janitorial duties and that he never hired or fired any employees. The Board therefore finds that the claimant is not exempt from the overtime pay provisions.
Additional, detailed information on overtime pay claims, entitlements and exclusions is available at the Ontario Ministry of Labour website. A lising of industries and professions that have special rules or exclusions applicable to overtime pay is also available from the Ministry online.

Note that provincial employment standards legislation does not cover federally regulated sectors, such as banking, airlines, telephone and cable communications and intra-provincial transport. These sectors are covered by the Canada Labour Code. For more information on the Canada Labour Code's overtime provisions, see Overview of Part III of the Canada Labour Code (Labour Standards) from the HRSDC website.

If you believe you have been wrongfuly deprived of overtime pay by your current or former employer, contact a lawyer who can advise you as to your rights relating to overtime pay and your additional entitlements under the Employment Standards Act and at common law.
- Robert Tanha and Garry J. Wise, Toronto

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