The majority of employees we meet at the Firm are unaware of their overtime entitlements. Many are shocked to learn that they unknowingly earned thousands of dollars in unpaid income. This is not entirely surprising given the many misconceptions about overtime.
It is true that certain professions are not entitled to overtime. However, employees working in the province of Ontario who are legally exempt from receiving overtime pay, or paid time off in lieu, represent the exception not the rule.
Salaried Employees vs. Hourly Employees
A common misconception is that salaried employees are not entitled to overtime. No such exception exists. Whether an individual is paid an hourly wage or an annual salary in no way impacts their eligibility to receive overtime pay.
Perhaps employers have contributed to the “salaried exception” myth by drafting employment contracts indicating that the base salary is designed to capture all hours worked, and stating that no overtime will be paid to the individual even if they are required to work more than their regular hours. It is understandable how many employees inherently trust employers and assume that their contracts are in-line with the law. The fact is that employers commonly include provisions or make representations to employees that are false or misleading, whether intentionally or by inadvertence. Ultimately, the laws regarding overtime pay supersede contractual agreements or policies.
If your compensation is paid by way of a base annual salary and you are required to work more than 44 hours in a week, you are entitled to receive overtime pay unless you fall within one of the specific categories that are exempt from receiving overtime.
But I’m a Manager…
Managers and supervisors are among the categories of employees who are not entitled to receive overtime pay, even if they work more than 44 hours in a week. However, the title of “manager” or “supervisor” does not automatically exempt an employee from overtime pay. Rather, it is the character of the work performed by the individual that must be considered.
We regularly meet employees who have management or supervisory titles but do not actually perform management or supervisory duties. Consequently, these individuals are entitled to overtime pay. In other instances, some employees perform some management or supervisory duties, but these tasks do not form the full scope of the services they provide. What many don’t realize is that managers or supervisors will retain their entitlement to overtime if they perform non-supervisory or non-managerial tasks on more than an irregular or exceptional basis.
Does that count for overtime?
One of the more nuanced questions surrounding overtime is what constitutes hours worked for the purposes of calculating overtime. Vacation time, public holidays and meal breaks are among the easier examples to exclude from paid “work”. However, travel for work (excluding commuting to and from work) counts towards calculating overtime. Similarly, working from home, including sending emails by laptop of smartphone, constitutes work. Finally, waiting on standby at your place of work, even if no productive activity was ultimately accomplished, constitutes work for overtime purposes.
A claim for overtime can be difficult to prove if employers create systems that prevent employees from formally logging time outside their defined hours. However, courts are often willing to accept evidence that employees document themselves. Maintaining thorough and timely records is invaluable.
My overtime hours were not approved
Employees are regularly told that they are not entitled to receive overtime pay because they did not receive prior approval from the company for the extra hours worked. In these cases, companies will often point to clauses in employment agreements or policies that state that prior approval is necessary for overtime hours. This is false.
Pursuant to the law, work hours include activities performed by an employee for the employer, even if the employment contract or a policy forbids or limits hours of work or requires the employer to authorize extra hours of work in advance. If an individual is required to complete a task that legitimately requires him or her to work overtime hours, he or she is entitled to receive overtime pay even if the employer did not approve the additional hours. However, employees must be mindful that failure to follow an overtime policy could, in some circumstances, be a disciplinary issue.
If you believe that you may have an overtime claim against your current or former employer, or want to learn more about the rules relating to overtime, the lawyers at Singh Lamarche LLP are available to provide you with the guidance and advice you need. We have successfully advised clients on all aspects of overtime issues, including claims for years of accumulated and unpaid overtime wages.
Alex Kagan is an employment lawyer at Singh Lamarche LLP. He advises both employees and employers with respect to various aspects of employment contracts and legal entitlements.
If you have any questions regarding an employment contract or your employment rights, Alex can be reached by telephone at 647-799-0499, or by email at email@example.com.