Date: Friday, Dec. 09 2011
Author: Daniel A. Lublin
Publication: The Globe & Mail
I am a professional engineer and took a salaried management position at an Ontario utility three years ago. The organization boasts work-life balance and the stated weekly hours are based on a 35-hour work week. However, I have consistently put in over 45 hours, and on several occasions I have worked well over 60-hour weeks. In fact, I have heard senior managers state the expectation is 55 hours. I doubt I would have taken this position and relocated had I known this expectation, since the majority of my decision was based on the work-life balance aspect touted by the organization.
The organization insists all personnel input time into the tracking system for payroll purposes and when any salaried individual attempts to place their actual time worked into the system they are contacted by HR and requested to limit their input to 35 hours.
Do I have any recourse for the extra hours worked? By populating the weekly work time as 35 hours, am I agreeing that this is the time I’ve worked?
Many employees are not paid for the overtime hours they actually work. Their dedication may be desirable to employers, but that does not necessarily make this practice legal.
Overtime pay is mandatory for every employee in Canada, subject to various exceptions. Federally regulated employees, such as those working at banks or for airlines, are entitled to overtime pay for any time worked in excess of eight hours a day. However, most employees are governed by provincial legislation, which varies among the provinces. In Ontario, for example, overtime pay is required for any hours worked in excess of 44 in any week.
In my legal practice, I find that there are two types of overtime “problems” for Canadian employees and employers:
- An employee or employer is ignorant of the mandatory requirement to pay overtime. This is not much of an excuse, since the courts and employment tribunals across the country will unquestionably award employees overtime pay where those hours worked can be proven. The dispute is then about how many overtime hours were actually worked.
- There is an issue as to whether any of the various exceptions to overtime pay apply. Here, there is no question that overtime was worked, but the issue is whether the employee is entitled to overtime pay. Among the exceptions, contractors (who are not covered by employment standards legislation), managers and supervisors are disqualified from overtime pay in most jurisdictions, as are other categories of employees. In Ontario, for example, professional employees, such as lawyers, accountants and engineers, are exempt from the overtime pay requirement, as are other types of employees, such as information technology professionals and firefighters. These employees may work or be required to work overtime, but unless there is an agreement with their employers to provide overtime pay or to provide lieu time off instead, the legislation just does not require it.
In the case of this engineer, he does not realize it but he falls into two categories of exceptions to overtime pay. As a manager and an engineer (both are exceptions to mandatory overtime pay), he has no legal right to overtime pay and no right to compensation for his extra hours worked. Otherwise, he would be entitled to time-and-a-half pay for any hours worked over 44 in a week. Unfortunately, in Canadian workplaces this exception is not much of an “exception” because it happens all too often.
If you believe that you are being asked to work overtime without proper pay for it, here are three tips to consider:
- Courts should not be asked to speculate how much overtime has actually been worked. I instruct clients to maintain a running journal that can substantiate the actual number of overtime hours worked. But even this is insufficient to routinely prove liability. Employees should also preserve any other dispositive evidence such as e-mails, time sheets or calendar entries.
- Employers and employees can agree to various arrangements or be subject to company policies, such as banking overtime hours. However, if that agreement provides the employee with less than the minimum provincial employment standards, it is invalid.
- Provincial labour standards officers can also be asked to resolve overtime disputes. Often, this provides a cost-effective alternative to bringing a court action.