Working Overtime Hours | Author: Simon Pelsmakher, Employment Lawyer
What Ontario Law Says about Overtime Hours
Ontario’s Employment Standards Act (ESA) governs the rules about overtime hours. It entitles workers to 1.5 times their normal rate of pay for time worked beyond 44 hours per week. However, this rule does not apply to people “whose work is supervisory or managerial in character”. Employees in positions of authority have a duty to follow reasonable orders from their employers. The specifics vary by industry. However, they all include an implied agreement to take on greater responsibilities in exchange for higher wages. Court decisions have consistently sided with employers on this matter. This makes it risky for managers to refuse extra hours of work required by their employer.
What’s In A Title?
With overtime hours, the legal definition downplays employee titles. The law focuses instead on the job function. You can be a manager without supervisory responsibilities. Or, your duties could be managerial in nature, even if your title does not say so. In either case, you remain exempt from receiving extra pay for overtime hours worked.
Every industry includes tasks that typically count as managerial in nature. In the retail sector, for example, employers expect managers to fill in for ill staff members, stay behind to close up shop, or put in extra time for inventory counting. Sometimes, your duties will require you to work more than 44 hours per week. And you will not receive overtime pay for it.
Market Factors & Legislative Changes to Overtime Hours
In employment law, overtime pay provisions remain subject to more changes than other statutes. This is because they must respond to market factors and balance employee rights without stymieing the viability of commercial activities. Over the years, the law expanded overtime pay exemptions to various professions. These include IT workers, taxi drivers, mushroom growers, landscape gardeners, among others. Working longer hours in these industries is considered par for the course.
With artificial intelligence and technology rapidly disrupting markets, it seems like the reactionary nature of the law leaves it perpetually lagging behind economic trends. This is precisely what occurred in Ontario during the decade that preceded the last round of upgrades to overtime pay provisions, passed in 2017 under Bill 148.
Bill 148, The Fair Workplaces, Better Jobs Act
When rules are unclear for employers, workers often end up holding the short end of the stick. In Ontario, a large shift had taken place with employers preferentially hiring contract workers, as needed. They comfortably skirted ESA provisions by hiring “independent contractors” to perform just like employees, but without the benefits of overtime hours, termination pay and more. A decade of wrongful dismissal lawsuits ensued with judges filling in gaps to level the playing field for employees. Precarious employment created disruption and financial insecurity in a growing segment of the working population. And this was not good for the economy.
Following two years of extensive consultations, the Liberal government finally passed weighty changes to our employment laws in 2017, with the passage of Bill 148; in broad sections, the new law simply codified corrective principles that the judicial system had continued to uphold through Common Laws.
The new provisions upgraded overtime pay requirements, addressing unfair situations that many IT sector workers, along with those in other industries, found themselves in. When they performed multiple tasks within the same organization, the law now requires employers to base overtime pay on the work performed during the overtime period.
On-Call Workers
Another upgrade brought forward in Bill 148 directly spoke to on-call shift workers, such as those employed in the restaurant and foodservice industry. The “three-hour rule,” requires employers to provide a minimum of 48 hours notice for shift cancellations. Alternatively, they could pay you for at least three hours, whether you are called for your shift or not. This three-hour rule applies to all provincially regulated employees, including managers.
Shortly after, Bill 47 introduced by the newly appointed Conservative government, took this one step further in favour of employers. It made workers ineligible for the minimum three-hour payment if employers prematurely end shifts, or cancel them, for reasons beyond their control, like inclement weather and power outages.
Accordingly, shift and on-call workers should understand that if you take the initiative to show up to work during a winter storm, you may not receive a full paycheque that day if your employer cannot continue operating and is forced to close up, prematurely.
When Working Overtime Hours is Not Reasonable
While managers require a pretty good reason to say no to working overtime hours, there are limits to how much employers can demand from you. Judges will intervene when your workload starts to impinge on your work-life balance. The exemption from receiving payment for overtime hours does not give your employer carte blanche to work you to exhaustion. Your duties must be reasonable for your industry. In the event of a legal dispute, the judge will scrutinize your employment contract, your employer’s expectations and comparable job functions within your sector to determine if abuse of power has taken place.
Overtime Hours and Constructive Dismissal
This matter definitely crosses into a grey zone when a transitory request turns into something more permanent that places you in an untenable situation. In this case, we advise you to document everything in writing without overlooking details, no matter how small. An hour consultation with one of our experienced employment lawyers will arm you with strategies to level the playing field.
Often, we can diplomatically step in to educate your employer about the law and your rights. This might easily remedy your situation without jeopardizing your employment status and source of income.
Other situations may require more drastic interventions. If your employment relationship has degenerated and turned toxic, then we will trigger a severance negotiation commensurate with your circumstances, pain and suffering. This will buy you a financial bridge to find better employment elsewhere.
And finally, when unreasonable demands from employers escalate to a point of no return, some employees may quit in frustration. If this describes your situation, contact our team of Toronto employment lawyers right away. We will advise you of the next steps, that might include filing a constructive dismissal lawsuit.
About The Author
Simon Pelsmakher is an employment lawyer and a fierce advocate for employee rights at Lecker & Associates. We have proudly represented employees for over 35 years in disputes against their employers.
If you believe your employer is making unfair demands on you for overtime hours, contact us for an assessment. We have the experience to advise you better than most.
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