Tuesday, July 05, 2011

Ontario Employment Law: Exemptions From The Overtime Provisions Of The Ontario Employment Standards Act

As a general rule, if an employee in Ontario works more than 44 hours per week, he or she is entitled to be paid one and one-half times his or her regular rate of pay for each hour worked in excess of 44 hours.

Section 22 of the Ontario Employment Standard Act provides:
PART VIII

OVERTIME PAY

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 work week or, if another threshold is prescribed, that prescribed threshold. 2000, c. 41, s. 22 (1); 2011, c. 1, Sched. 7, s. 1.

Regulation 285 to the Ontario Employment Standards Act, however, contains some notable exemptions to the normal rule.

Two provisions contained in the Regulation are relevant to overtime claims:
  • Section 2(1), which sets out general exemptions from Parts VII-XI of the Act, including Part VIII dealing with overtime pay, and
  • Section 8, which sets out exemptions from overtime.
Section 2(1) provides:

Exemptions from Parts VII to XI of Act

2. (1) Parts VII, VIII, IX, X and XI of the Act do not apply to a person employed,

(a) as a duly qualified practitioner of,

(i) architecture,

(ii) law,

(iii) professional engineering,

(iv) public accounting,

(v) surveying, or

(vi) veterinary science;

(b) as a duly registered practitioner of,

(i) chiropody,

(ii) chiropractic,

(iii) dentistry,

(iv) massage therapy,

(v) medicine,

(vi) optometry,

(vii) pharmacy,

(viii) physiotherapy, or

(ix) psychology;

(c) as a duly registered practitioner under the Drugless Practitioners Act;

(d) as a teacher as defined in the Teaching Profession Act;

(e) as a student in training for an occupation mentioned in clause (a), (b), (c) or (d);

(f) in commercial fishing;

(g) as a salesperson or broker, as those terms are defined in the Real Estate and Business Brokers Act, 2002; or

(h) as a salesperson, other than a route salesperson, who is entitled to receive all or any part of his or her remuneration as commissions in respect of offers to purchase or sales that,

(i) relate to goods or services, and

(ii) are normally made away from the employer’s place of business. O. Reg. 285/01, s. 2 (1); O. Reg. 92/06, s. 1.

(2) Subject to sections 24, 25, 26 and 27 of this Regulation, Parts VII, VIII, IX, X and XI of the Act do not apply to a person employed on a farm whose employment is directly related to the primary production of eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, herbs, pigs, cattle, sheep, goats, poultry, deer, elk, ratites, bison, rabbits, game birds, wild boar and cultured fish. O. Reg. 285/01, s. 2 (2).

Section 8 provides:
Exemptions re Overtime Pay

Exemptions from Part VIII of Act

8. Part VIII of the Act does not apply to,

(a) a person employed as a firefighter as defined in section 1 of the Fire Protection and Prevention Act, 1997;

(b) a person whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis;

(c) a person employed as a fishing or hunting guide;

(d) a person employed,

(i) as a landscape gardener, or

(ii) to install and maintain swimming pools;

(e) a person whose employment is directly related to,

(i) the growing of mushrooms,

(ii) the growing of flowers for the retail and wholesale trade,

(iii) the growing, transporting and laying of sod,

(iv) the growing of trees and shrubs for the retail and wholesale trade,

(v) the breeding and boarding of horses on a farm, or

(vi) the keeping of furbearing mammals, as defined in the Fish and Wildlife Conservation Act, 1997, for propagation or the production of pelts for commercial purposes;

(f) a person employed as a student to instruct or supervise children;

(g) a person employed as a student at a camp for children;

(h) a person who is employed as a student in a recreational program operated by a charitable organization registered under Part I of the Income Tax Act (Canada) and whose work or duties are directly connected with the recreational program;

(i) a person who is employed as the superintendent, janitor or caretaker of a residential building and resides in the building;

(j) a person employed as a taxi cab driver;

(k) a person employed as an ambulance driver, ambulance driver’s helper or first-aid attendant on an ambulance; or

(l) an information technology professional. O. Reg. 285/01, s. 8.

On the specific exemption applicable to employees whose work is "supervisory or managerial in character", please see our January 8, 2011 post, "Ontario Employment Law: Overtime Pay."

- Robert Tanha, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

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