Show Notes:

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Lecture Slides:

Welcome to YouCounsel.

Many many employees in Ontario have no idea, whether they are entitled to overtime pay based upon their employment or not. We have posted, I believe 2 lectures on this topic which explain the fundamental principles of overtime pay. In this lecture we wanted to dig a bit more deeper and then explain to you, which are the employees who are exempt from getting overtime pay, or who have different rules that may apply to their situation with respect to overtime pay.

Please note that this lecture is not legal advice.  If you have any specific questions regarding your issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

 We will explain to you the basic entitlement for overtime pay. We will also explain some of the misconceptions people have with respect to overtime pay. Both of these have been covered in our previous lectures in more detail. So by all means check those lectures out, but we will cover some basic topics here. Then we will explain, what are the categories where the overtime hours are applied differently to some employees and then we’ll get into the meat of today’s discussion which is, which of the employees are actually exempt from earning overtime pay.

You are entitled to overtime pay if you meet 2 qualifications: number one you work more than 44 hours in a week in Ontario and secondly you are not exempt from earning overtime pay which is the topic of today’s discussion.  If you work 44 hours or more then you get paid one and a half times for each overtime hour worked. For example, if your hourly income comes out to be $20.00 an hour and you have worked one hour of overtime pay, then you get $30.00 for that time.  Or you may get time in lieu based upon one and a half times for each hour worked. For example, if you work one hour of overtime then you will get paid time off or hour and a half. This is your entitlement for the overtime. Now there’s a category of employees who will get different overtime—well, same overtime based on different hours.  We’ll talk about that as well.

Let’s talk about some of the misconceptions. Generally speaking there are 3 misconceptions people have about overtime pay. The most common one that I’ve heard people saying is that: “oh, I am a salaried employee, I make $60,000.00 a year / I make $40,000.00 a year and therefore I’m not entitled to overtime pay”.  That is not correct.  It matters not whether you are a salaried employee or whether you are earn hourly wages—as  long as you qualify the conditions that I’ve explained, you are entitled to overtime pay.

The 2nd misconception people have is about the level of income. I’ve dealt with employees who have had significantly higher income and significantly higher bonuses and somehow they are made to believe, that because of their higher income, they are not entitled to overtime pay. Again, it matters not what is the level of your income, what matters is whether you qualify based on the 2 categories of principles that apply and if you do then you are entitled to overtime pay.   

Finally, some of the employment contracts I have seen they tend to take away the right of overtime pay. For example, some contracts that I have seen, which will indicate that look you will get ‘X’ amount of bonus for your work and because you’re going to get that significant bonus you will not be entitled to overtime pay.  That is not correct. Any employment contract, any contract cannot take away your right for overtime pay, as long as you’re entitled to it under the Employment Standards Act in Ontario. Now the contract can give you more rights, but it cannot take away your rights. I have seen employment contracts where employees who are generally not entitled to overtime pay, based on Employment Standards Act, they are given overtime pay withthat specific employer. I have seen many information technology professionals who are able to earn overtime pay even though Employment Standards Act does not allow them to have overtime pay. An employment contract can give you more rights, but it cannot take away your rights for overtime.

Let’s talk about the Rules for different overtime hours for certain employees. If you are involved in road building relating to streets, highways or parking lots, then you’re maybe entitled to overtime pay after you have worked 55 hours not 44 hours. Now if you are an employee involved in road building but you’re not working on streets, highways but working on bridges, tunnels or retaining walls, for some reason your overtime hours kick in after 50 hours. If you’re working in hotels, motels, tourist resorts, restaurants and taverns and you worked 24 weeks or less in a year and you have a place given to you to stay, then your overtime hours will kick in after 50 hours of work. If you are a driver or their helper, then any work within a municipality or no more than 5 kilometers beyond municipalities (let me say I don’t understand why), then your overtime hours kick in after 50 hours. Then some other drivers the overtime hours kick in after 60 hours. If you are in one of these categories, there are more legislations, there are more Rules that you need to see. I’ve not explained this exhaustively, but you should understand that these are categories of employees, who will have additional or different rules that may apply to them.

Let’s talk about employees who are exempt from earning overtime. The most important category is number one, if you are a managerial or supervisory employee—then you are not entitled to overtime pay. This is the most common one and then there are further qualifications to that:  how do you define a manager or supervisor? There could be a discussion about that. Then what if you’re doing a combination of work one part of your work is supervisory and part of it is not. There are further rules that may apply to them, but generally speaking managerial or supervisory employees are not entitled to overtime pay.

Now this is the list of all of the employees. If you are an architect, lawyer, professional engineer, public accountant, so on and so forth; these are all listed – if you are one of these employees, then you’re not entitled to overtime pay.  Then also note that if you are a student of all of these occupations, then you’re not entitled to overtime pay.  If you are a firefighter, if you’re an employee involved in commercial fishing—there is no overtime.  If you are a guide for hunting, fishing or wilderness – there is no overtime. Landscape gardeners have no overtime. If you install or maintain swimming pools no overtime; sales person in real estate, or broker no overtime; if you’re a sales person on commission, there are additional rules, but generally speaking you’re not entitled to overtime hours; if you are a farm employee, generally speaking, no overtime hours; if you grow mushrooms or grow flowers, for retail or wholesale or you grow and transport or lay sod  or you grow trees and shrubs for the whole retail and wholesale you’re not entitled to overtime pay. If you breed horses on a farm, no overtime hours and if for any reason you raise fur bearing mammals you’re absolutely not entitled to overtime pay. How could you? If you’re employed as a student to instruct, supervise children-no overtime hours, no overtime pay. A person employed as a student at a camp for children no overtime pay, if you are employed as a student in the recreation program and there are specific requirements for that, no overtime pay, if you are employed as a superintendent or janitor or a caretaker of a residential building and you reside in that building, no overtime for you. Person employed as a cab driver, absolutely not. Ambulance driver, no overtime and if you are an information technology professional there’s no overtime for you.

One comment that I can’t help make is about the distinctions that have been drawn. I believe that these are arbitrary distinctions, with respect to which employees should get overtime pay and which should not. It makes no sense to me why a person who installs a swimming pool should not get overtime pay or a person who is a landscape gardener should not get overtime pay and somebody else would. These distinctions do not make sense to me, but they exist. What may make sense to me is that if the distinction is drawn on the basis of your income. For example, if your income is $100,000.00 or more, then you may not be entitled to overtime pay because you earn sufficient income and if you work long hours then it should not make a difference. That is one distinction that I can understand. Or if you indicate that if you’re a supervisory or managerial employee, you get sufficiently high income and if you work long hours then you should not get overtime pay.

These are the kind of distinctions that make sense to me. They’re simple. But all of these categories that are created, and not only that, a lot of employees are not entitled to overtime pay but then some employees are treated differently with respect to the hours, like why is a person, who is working on tunnels, entitled to overtime after 50 hours but the one who is working on streets entitled to overtime after 55 hours? These don’t make sense to me.  In any event what you should know is that these categories exist as of today and if one of these categories apply to you then you may not be entitled to overtime pay or your hours may be treated differently.

Thank-you for watching.