salaried employee, paid overtime

Do Salaried Employees Get Paid Overtime?

Over the years, the term “overtime” has acquired a negative connotation. Most people associate it with poor time management and toxic work culture. The disapproval of the concept stems from its proneness to abuse.

If left unchecked, employers may force workers to work extra hours without compensating them adequately. For this reason, employment standards legislation across Canada generally protects employee rights to be paid overtime.

Overtime generally refers to any hours worked by a worker that exceed their regular working hours. Overtime pay is compensation an employee receives for working overtime. Though you might be wondering – what about employees who do not get paid on an hourly basis? Are they entitled to overtime pay as well?

The article below will discuss the overtime pay entitlements of salaried employees in Ontario, your remedies for not being paid overtime and how an employment lawyer can help you seek your legal entitlements.

 

What Is Overtime Pay?

Under the Ontario Employment Standards Act, 2000 (the “ESA”), provincially regulated workers are entitled to additional compensation if they are asked to work beyond their regular work hours. The ESA dictates that most employees are entitled to overtime pay if they work beyond the overtime threshold of forty-four (44) hours per week.

The hours worked by an employee in the entire week are counted towards calculating overtime. This means an employee cannot claim overtime pay for working beyond their regular hours for one day if their total hours worked in the week remain below the forty-four(44) hours threshold.

Most Ontario employees are entitled to an overtime pay rate of at least one and one-half (1.5) times their regular hourly rate of pay. This is called the overtime rate.

Under the ESA, most employees are entitled to claim paid overtime unless they are explicitly excluded. Lawyers, doctors, engineers, accountants, and information technology professionals are generally not entitled to overtime pay. Further, managers and supervisors are usually not entitled to overtime pay, but they can be depending on their unique circumstances.

With many categories of workers being exempt from overtime pay, some people mistakenly believe a salaried employee cannot claim overtime.

 

Can You Claim Overtime Pay as a Salaried Employee?

The way overtime pay is described under the ESA leads many to falsely assume that salaried employees are not entitled to it. Just because an employee works in a salaried position does not mean their employer can deny them overtime pay.

However, salaried employees need to calculate their hourly rate to determine their overtime pay entitlements. Their regular pay rate is calculated by dividing their weekly compensation into an hourly amount. Then, the overtime pay is calculated by applying the overtime rate (1.5) to the hourly figure.

An employee may enter into an agreement with their employer to receive paid time off work in lieu of overtime pay. Commonly known as banked time or time off in lieu. Such employees may get one and one half (1.5) hours of paid time off for every hour of overtime work they did in a week.

The overtime pay under the ESA is the bare minimum most employees are entitled to for working beyond forty-four (44) hours a week. This means employers cannot refuse to pay their employees overtime pay or otherwise less than what they are owed under the ESA.

 

What Are Your Remedies For Not Being Paid Overtime?

In Ontario, an employment agreement that attempts to contract out of the ESA’s provisions is illegal. Employees cannot waive their legal rights and entitlements under the ESA. Therefore, employers cannot reduce the employees’ overtime entitlements below the ESA minimums. Such a provision would be unenforceable against the employee.

If your employer reduced your overtime pay below the applicable ESA minimums, you could send them a written complaint. You can also ask an employment lawyer to send your employer a demand letter that briefly outlines the facts and laws supporting your claim to pay overtime.

In the best-case scenario, your employer may agree with your demands and pay your overtime pay. If your employer ignores your request or decides not to provide you with overtime pay, you can take legal action.

If your employer does not pay you for owed overtime, you could file a Ministry of Labour complaint against your employer. In Ontario, the Ministry of Labour is responsible for investigating and making orders against employers for violations of the ESA. After you file a complaint, the Ministry of Labour processes it and assigns an employment standards officer to investigate it.

Your employer may also participate in the probe. The investigating officer may require them to submit evidence, records, or other information. At the end of the investigation, the officer will render its decision mentioning the amount of overtime your employer must pay under the ESA.

Instead of filing a Ministry of Labour complaint, you could also argue your employment was terminated due to the employer’s failure to pay you for overtime hours and increasing the number of hours you have to work without your consent. In this case, you can sue your employer for constructive dismissal and ask for severance pay.

Employees should be cautious about commencing any legal proceedings before consulting with an employment lawyer.

 

How an Employment Lawyer Can Help

Consulting with an employment lawyer when a dispute arises with your employer is the best way to determine what you are entitled to, and what your legal options are. How they can help will depend on your unique circumstances.

An employment lawyer can send your employer a demand letter listing your demands for settling the matter outside the court. The demand letter can be a good starting point for negotiation. Your employer’s response can help determine their negotiation position and your next steps.

An employment lawyer can also use their knowledge of the law and available legal processes to advise you on whether to file a Ministry of Labour complaint. They can also sue your employer in civil for constructive dismissal, among other civil claims. They can also use their knowledge of the law and advocacy skills to negotiate a settlement with your employer.

If you want to sue your employer for constructive dismissal or other civil claims, an employment lawyer can help you navigate the risky and complicated process. An employment lawyer has the knowledge and expertise to make sure you prepare the materials for your legal matter properly. They can help make the best legal arguments possible to maximize the chances of getting the results you want.

 

Conclusion 

Overtime pay is a crucial employment standard that protects workers from exploitation at the hands of employers. In Ontario, overtime pay protections under the ESA compensate employees for working above the forty-four (44) hours a week threshold.

In Ontario, a salaried employee is generally entitled to the same overtime rate as an hourly worker, subject to the enforceable terms of an employment agreement and any exceptions outlined in the ESA.

You can potentially take legal action against your employer if you are not paid overtime. Depending on the facts of your case, you can file a Ministry of Labour complaint against your employer or sue them in civil courts. Commencing a Ministry of labour complaint may limit the damages you could receive to only those owed under the ESA minimums and prevent you from suing in court for more damages based on the same facts.

An employment lawyer can help assess your case and prepare a legal strategy based on your unique circumstances. They can help you negotiate with your employer and navigate the relevant legal process to get you the results you want. Consulting with an employment lawyer as soon as possible is the best way to determine your legal entitlements and what appropriate action to take next.

 

Contact Us

If you are an employer who wants to ensure you are complying with overtime laws or an employee who wants to pursue your owed overtime pay, our team of experienced legal professionals at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support with a same-day response, visit our CLO Program page for our strategic solutions.

 

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