The Do’s and Don’ts of Overtime Payachkarlaw-admin
Overtime pay is a longstanding employment standard meant to protect workers from being overworked and ensure that they are fairly compensated in the event that they are. This article breaks down what is and is not allowed under Ontario law when it comes to overtime pay.
Is it legal for my employer to not pay me overtime?
In Ontario, employees have the right to be paid for their overtime work under the Employment Standards Act, 2000 (ESA). “Overtime” refers to any hours worked in excess of 44 hours in a week. At a minimum, employees must be paid for overtime at the rate of “time and a half”, or 1.5 times their regular hourly rate, for each hour in excess of the threshold.
Which professions and fields are exempt from overtime pay?
While overtime pay is mandatory for most employees and workplaces, there are certain exceptions in which it is legal for an employer not to pay their employees overtime.
Ontario Regulation 285/01 sets out various special rules and exemptions to the ESA. One such exemption pertains to overtime pay and allows certain employers not to pay overtime to employees that fall under certain jobs or professions.
Section 2(1)(a) of the Regulation exempts qualified practitioners from being paid overtime. You may be exempt from overtime pay in Ontario entitlement if you are a qualified practitioner of:
- Professional engineering
- Public accounting
- Veterinary science
Section 2(1)(b) also exempts registered practitioners from overtime pay. You may be exempt from overtime pay entitlement if you are a registered practitioner of:
- Massage therapy
While these exemptions refer mostly to licensed professionals and practitioners, they are not limited to such groups.
Learn who is exempt from overtime pay and when you are eligible.
Similarly, if you are in a managerial or supervisory role, you may not be entitled to overtime pay. For this exemption to apply, it is not sufficient for an employee to have the title of manager or supervisor. Their actual functions must also be managerial or supervisory in character; meaning that they are fulfilling the duties and responsibilities of such a role.
Another overtime-exempt category is students. Students may also find themselves exempt from overtime pay when employed in recreational programs or as camp supervisors. Additionally, overtime pay may not apply to students who are employed as part of a recognized learning program, or even in instances where credits or other educational considerations are being rewarded. This exemption would apply, for example, to students in a journalism program who worked at a newspaper for a term as part of their university program.
There are various other jobs that are exempt from overtime pay and can be found under section 8 of the Regulation.
Is it illegal for your employer to pay you cash for overtime hours?
According to Section 11(2) of the ESA, cash is an acceptable method of payment for wages. As such, cash is acceptable for overtime hours, given that the method and periods of payment do not conflict with any of the provisions of the ESA. The only requirement for payment of overtime is that the wage rate must be indicated through a written statement or payslip and the payments must be regular and recurring.
Can an employee give up their entitlement to overtime pay?
Both employers and employees are not allowed to enter into an employment agreement where the employee gives up their entitlement to overtime. The ESA does not allow the overtime pay standard to be waived by employment agreements.
Can an employer modify wages in anticipation of overtime pay?
An employer cannot modify the wages of an employee during periods in which they are owed overtime pay. Such avoidance of overtime pay entitlement is illegal under the ESA.
Overtime pay is an important employment standard that protects employees from being overworked. It disincentivizes employers from working their employees in excess of a regular week’s threshold of 44 hours while incentivizing and compensating workers for working in excess of this threshold.
If you are unsure about whether you are entitled to overtime pay our team of experienced employment and human rights lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.
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Disclaimer: The goal of this blog is only educational. It is to help you understand some of the common and general inquiries we receive. Please do not rely on this as legal advice because legal advice is tricky and dependent on specific situations. Make sure you consult with a lawyer before using this information. Should you require legal advice for your particular situation, fill out the contact form, call (800) 771-7882 or email [email protected]