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Welcome everyone this is Amer Mushtaq from YouCounsel.

Today we’ll talk about entitlement to overtime pay in Ontario.  Many employees are unclear about their rights for overtime pay in Ontario. This is a common issue.  We’re going to discuss today some of the essentials regarding overtime pay so you understand the basic concepts and have some clarity on when you are entitled to overtime pay and when you’re not. We’ll begin with the Disclaimer that this course is not legal advice.  If you have any specific questions, you must contact a lawyer or paralegal.

 What is overtime pay? Overtime pay is decided or is governed by the Employment Standards Act 2000 in Ontario and in other provinces there is similar legislation that provides how the overtime pay is regulated in those provinces.  The fundamental concepts (the principles) in this lecture are equally applicable to other provinces but the legislation specific to overtime pay in each province is different. You must check your provinces’ legislation to make sure that you have a clear understanding of the hours and how much wages you are entitled to.

The Employment Standards Act 2000 for Ontario.  The basic concept you want to remember is that if you have worked for more than 44 hours per week, then you will be entitled to overtime pay and that you will be entitled to 1.5 time.  If you were making an hourly wage of $20/hour, then you will be entitled to $30 for that time period.  Another concept you want to understand is that Employment Standards Act 2000 allows for averaging of these hours over two weeks or a longer period.  But there are some specific requirements for that averaging.  It’s not available to employers by default.  I’ll show you a little bit about that specific section of the Employment Standards Act 2000. One final thing you want to keep in mind, is that Employment Standards Act 2000 again allows the employer to provide time in lieu as opposed to money for the overtime hours.  But again, there are specific requirements that must be fulfilled.  This option is not available by default.

Let’s look at Employment Standards Act 2000 and see where this specific section is, that deals with overtime pay.  If you scroll down the Table of Contents; this is the Employment Standards Act 2000.  You can type it up on google and you will find it available online on CanlII.  That is one website and there are other websites where you will find the legislation available.  Part VIII of the Employment Standards Act deals with overtime pay.  Let’s click on that and see what it provides. Section 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.

 —what that means as you can see further down below about averaging and time in lieu and whatnot.  Essentially, forty four hours plus per week—if you work that many hours then you’re entitled to time and a half.  I talked about averaging.  This is the Section 22(2) that talks about 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; and

If these are the specific conditions the employee has  made an agreement with the employer that his or her hours of work may be averaged over a period of a specific number of weeks, you as an employee must have that agreement, otherwise the employer cannot average on his or her own.  The employer has received an approval under Section 22 (1) that applies to the employee or a class of employees that includes the employee.  This approval is actually obtained from the direction of the Employment Standards Act and so that needs to be done.  Then it talks about averaging.  These are some of the specific terms.  The key message that you want to keep in mind is that if you work for more than 44 hours then you will be entitled to overtime pay. 

 Here is Subsection (7) that talks about Time in Lieu. 

 Time off in lieu

 (7) The employee may be compensated for overtime hours by receiving one and one-half hours of paid time off work for each hour of overtime worked instead of overtime pay if,

 (a) the employee and the employer agree to do so; and [your agreement is essential]

(b) the paid time off work is taken within three months of the work week in which the overtime was earned or, with the employee’s agreement, within 12 months of that work week. 

 If you’re not agreeing to it, then you must get paid and the pay time off work is taken within three months of the work week in which the overtime was earned or with the employees agreement if you’re agreeing to it within twelve months of that work week [Refer to 7(b)].  There are specific requirements when an employer can offer you time in lieu.  And absent those specific conditions the basic principle is that you’re entitled to time-and-a-half or 44 hours plus work in excess of 44 hours per week. 

Now a question arises which is very, very common and this is a common misunderstanding.  Clients come to us all the time and say that I am NOT entitled to overtime pay because I was a salaried employee.  I was making specific amount of income regardless of the hours so I assume that I’m not entitled to overtime hours.  I’m making $30,000 annually or I’m making $60,000 annually and so my paycheck is quite specific.  It’s not based upon the hours.  I don’t get paid based on $15/hour or $20/hour.  There’s an assumption made by employees that if you are a salaried employee you’re not entitled to overtime pay.  An absolutely incorrect assumption. Please keep in mind that whether you are a salaried employee or whether you are making hourly wages it has no bearing on your entitlement to overtime pay—if you are working for more than 44 hours per week it, does not matter whether you’re a salaried employee or an hourly wage employee, you are entitled to overtime pay.  It’s a very, very common misconception and I think it’s important for you to understand that.

What about low income versus high income? We sometimes get clients who make significantly high income.   Somehow they believe that overtime pay is only for employees who are much Junior, who do not make a lot of money.  I want you to be clear that whether you make $30,000/year or $150,000/year, it actually has no bearing.  It makes no difference in law to your entitlement to overtime pay.  I have had a number of clients who worked in investment banking field, who worked in a non managerial, non-supervisory capacity.  These are young MBAs who worked for investment banking firms.  If you know anything about Investment Banking, the employees there work at least 60/65/70 hours per week.  They are always working more than 44 hours.  There are actually very, very few times that they’re not working that much and yes they get paid a lot of money.  Sometimes their basic salary is $120,000 to $150,000 plus they get bonuses on top of that.  Are they entitled to overtime pay?  As far as the legislation is concerned, as far as the law is concerned as it stands today: absolutely yes.  I have launched a number of court actions in which we claimed overtime pay for these very highly paid individuals because they were not given overtime pay by their employers.  Whether you make low income or high income, it has no bearing on your entitlement to overtime pay.

What about supervisory vs. non-supervisory roles.  This is one factor which has an absolute bearing on whether you are entitled to overtime pay.  This is the factor that makes a difference if you are a supervisory employee.  You are not entitled to overtime pay.  Only non-supervisory employees are entitled to overtime pay.  Where is this principle (this rule) coming from?  It is coming from the Employment Standards Act.  I’ll show you where this exemption is but if you are in a supervisory capacity you are not entitled to overtime pay—but there is a caution here.  You want to keep in mind the difference between the substance and the form.  What do I mean by that? Are you an employee who was actually working in a non-supervisory capacity but just carry a fancy title as a manager? If that’s the case, then you are still entitled to overtime pay.  Your title is not what the court considers it is, it is what you actually do.  I’ll give you an example, I’ve had a number of clients who had worked for pharmacies and they had the title of Manager of Pharmacy but, in essence, they were only spending maybe thirty minutes or less on any managerial work—which was scheduling other people’s schedules for the day or for the week.  For the rest of the time during the day they were stocking merchandise in the shelves, they were receiving merchandise, they were acting as shipper-receiver, they were working as a cashier, they were mopping floors—all of these tasks were non-managerial tasks.  Those were the tasks that they were doing 80% to 90% of the time.  The managerial role was very limited.  For the time that they were working or performing non-managerial tasks, if they had accumulated more than 44 hours per week they were absolutely entitled to overtime pay.  Another example I can give you is: I had a client who was an executive chef at a very high end hotel—which has chains all around the world.  He approached me for some other matter and when I asked him about his hours here (excessively long hours) and I suggested to him that he was entitled to overtime pay.  He rejected that saying that he was an Executive Chef which was a managerial position and he could not have been entitled to overtime pay.  I responded to him that, that was not correct because I had seen, like you, a number of shows on television that show these chefs working and you realize that majority of the time a chef is actually working in the kitchen with his or her hands—preparing stuff, preparing meals and whatnot.  When I delved deeper into his day, I realized that his managerial role was NOT more than 5% of his work.  The rest of the time he was actually preparing meals with his hands which was not considered a managerial task.  So he was entitled to a significant amount of overtime pay.  Consider that if your role has a title that sounds like a supervisory role or a managerial role, it does not matter.  What matters is what is the nature of your duties and if your duties were such that they were considered non-managerial / non-supervisory, then you will still be entitled to overtime pay for that work.

 Let’s get to exemptions now.  As I said everybody who works for 44 hours plus in a week is entitled to overtime pay and then I’m talking about exemptions.  The same Employment Standards Act that say’s that you are entitled to overtime pay also prescribes (also provides) under what circumstances you’re not entitled to overtime pay.  We will talk about Ontario Regulation, 285/1, Section 2; in the same regulation, Section 8; and again in the same Regulation Sections (13) to (18).  Let’s have a quick look at those Regulations and see what we can discern from them.  I open here the entire Regulation.  Just so you know what a Regulation is—Regulations are Rules that are made and are subsidiary to the major legislation.  This Regulation is in the Employment Standards Act.  It’s called O. Reg. 285/1 and let’s go down to the Table of Content and when we go here in Section (2) Exemption, regarding various parts of Act an exemption for Part 7 to 9 of the Act and remember that part 8 is the one that talks about overtime pay.  This specific exemption is 7, 8 and 9.  Who are the people who are exempted from overtime pay?  Let’s click on that and it says Part 7 to 11 of the Act do not apply to a person employed as a duly qualified practitioner of architecture, law, professional engineering, public accounting, surveying, veterinary science, so on and so forth.  There’s an entire list.  Two things to keep in mind that all of these people are exempt.  They’re not entitled to overtime pay, even if they’re working more than 44 hours.  An architect who is working—duly qualified practitioner—which means that, that person is actually a licensed architect.  A lawyer who is working as a lawyer not if a lawyer who’s working as a business manager for a company or as a business you know associate for a company, then he is not working as a qualified practitioner of law.  There is a bit more detail into how you want to read this.  But these are examples of some of the professions where individuals in those professions  are not entitled to overtime pay:  chiropody, chiropractor, dentistry, massage therapy.  A duly registered practitioner under the Drugless Practitioner’s Act, a teacher, a student in training for an occupation in the list, a sales person or broker.  All of these people are not entitled to overtime pay.  That’s one category of people who are not entitled to overtime pay.  It doesn’t end there.

 Let’s look at another category and we go down to Exemption under Overtime Pay, Section 8. And when you read this Section 8 of the Act does not apply to and there are other people: firefighters; and this is the one I was talking about “a person whose work is supervisory or managerial in character [he or she is actually working in that capacity] and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis”.  Remember I said that if majority of the time you’re working in non-managerial capacity then you are entitled to overtime pay; but if you are a managerial employee and you are occasionally working in non-managerial capacity in your example you’re not entitled to overtime pay.  Then there are the odd exceptions like a person employed as a fishing or hunting guide, a person employed as a landscape gardener, the one who’s installing swimming pools, and so on and so forth.  There’s a whole list of that.  Information Technology professionals are not entitled to overtime pay.  Why are these people exempt from overtime pay?  I cannot answer that.  Is that justified?  I cannot say that but just so you know that there are a number of exceptions for people who are not entitled to overtime pay and so if you want to be accurate, you may want to check the legislation properly and make sure that you understand who are not entitled to overtime pay.

There’s a third category that I had mentioned, Sections 13 to 18.  Let’s quickly look at that category.  It say’s people who are working in road building, there are certain specific sections that say that they are not entitled to overtime pay.  Hotels, motels, tourist resorts, restaurants and taverns, people who are working in fresh fruit and vegetable processing, sewer and water main construction, local cartage, highway transport—there are further exemptions for people that are not entitled to overtime pay.

What you want to remember—the message that you want to carry—is that you never ever assume that you are not entitled to overtime pay.  You should not assume that. You always keep records of the hours that you work.  You keep those records outside of the office, in your home, on your home computer, so that when you need to prove that you actually worked hours more than 44, you have some record to prove that.  You always want to consult an employment lawyer because there are, as I showed you, so many specific exemptions and how the law is applied in those exemptions, that you may want to make sure that if you don’t understand it clearly yourself, then talk to a lawyer so that you can understand whether you are entitled to overtime pay or not.  I can tell you from experience that the majority of people who come to us have no understanding of when they are entitled to overtime pay or not, or they assume that the employer will be abiding by all the applicable laws and when they are entitled to overtime pay, they will get those. But if you watch the news, if you read the news, you will realize that there are number of class action lawsuits against many major corporations for unpaid overtime pay.  This is something that isn’t uncommon.  Many employers either by ignorance are just by sheer neglect fail to pay overtime pay to their employees. 

If you have any specific questions about this topic or you want some clarification, please add a comment on YouTube or send us an e-mail and we’ll be happy to add further lectures on this topic.  Thank you for watching.