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CANADIAN HR LAW
Jan 10, 2012

Overtime risks and misconceptions

Can an employer force people to work overtime? If employees work unpaid overtime without authorization, do they have to be paid?
    

By Stuart Rudner

My daily interactions with HR professionals, in-house counsel and small business owners, as well as my recent review of the final exams submitted in the HR Law for HR Professionals course held by Osgoode Professional Development, revealed many misconceptions regarding overtime. I will address some of these below.

Overtime is not mandatory

An employer cannot force an employee to work overtime, except in the rarest of circumstances. Of course, employees can agree to work overtime.

Overtime does not have to be authorized in order to be compensable

If an employee legitimately works overtime, they are entitled to the appropriate pay or time off in lieu thereof. An employer cannot take the position the overtime was not authorized and refuse to pay for it. However, it’s advisable to put a policy in place stating all overtime must be authorized. While the employer cannot refuse to pay for unauthorized overtime, it can discipline the employee for breaching that policy. Discipline can include dismissal in appropriate circumstances. This should discourage employees from working overtime without obtaining prior approval.

Check exemptions carefully

By default, all employees are entitled to overtime pay or time off in lieu thereof. However, certain categories of workers are exempt. Contrary to popular opinion, this has nothing to do with how an individual is paid.

Salaried employees are just as entitled to overtime pay as those paid by the hour. The exemptions are based upon job duties, with the most common being that of managers or supervisors. The title doesn’t matter — it’s the true nature of the individual’s duties and, if it’s not truly a managerial or supervisory position, then the worker will be entitled to overtime pay.

This can be the case where a portion of the employee’s duties are non‑managerial or supervisory.

Checking and responding to e-mails counts as overtime

Lately, organizations have been giving out BlackBerrys and similar devices like candy, without much consideration for whether the particular employee needs to have such a device.

The result is, often, employees feel they are expected to check and respond to e‑mails when off duty. Such time can certainly count as hours of work, and therefore toward entitlement to overtime pay. Organizations should have specific policies in place regarding when employees are expected to check and respond to e‑mail and, conversely, when they should not be doing so. For those that do not need to check email while off-duty, a clear policy prohibiting them from doing so can and generally should be implemented.

Obviously, these policies will vary depending upon the nature of the position. However, such a policy can be used to refute the allegation employees were expected to work while off duty. That said, if the practice is inconsistent with the policy, then the policy will be ineffective.

In addition to the issues addressed above, many organizations do not appreciate the availability of averaging agreements. These agreements allow the employer to average a specific employee’s hours of work over a period of several weeks for purposes of calculating eligibility for overtime pay. This is effective where an employee has hours of work that vary significantly from week to week. By way of example, by default, if an employee in Ontario worked 48 hours one week and 30 the next, then they would be entitled to four hours of overtime in the first week. However, if there was an averaging agreement in place, then the average hours of work would be 37, and no overtime would be payable. It is important to note such agreements are entirely voluntary.

In light of well-publicized overtime class actions in recent years, and the many misconceptions that seem to exist, organizations are well advised to review their policies and procedures with respect to overtime and overtime pay in order to ensure that they are both compliant with applicable laws and strategic in terms of minimizing their obligations.

Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.

    
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COMMENTS
18 hour day
Friday, October 24, 2014 2:55:00 PM by Stuart Rudner
Erickmary,

Your email raises a number of issues, including the obligation to provide breaks and the entitlement to overtime. I cannot offer legal advice to you online, but would be happy to arrange a consultation to explain your rights in detail. You can reach me at srudner@rudnermacdonald.com.
18 hour day
Friday, October 24, 2014 2:16:00 PM by Erickmary
I worked an 18 hour day. starting at 4:30 am till 10:30 at night with a 20 min lunch break and an hour for dinner. I am in a term position that is ending very shortly and work for 16$ an hour. I want to be paid for that whirl-win day and not have to take flex time. Do I have to if my boss asks me to?
mandatory meetings
Wednesday, October 08, 2014 3:28:00 PM by Stuart Rudner
my employer makes mandatory meetings on my days off but isnt paying everyone for showing up, is this legal? please email me.

Camron, as I advised someone else, time at work is generally to be paid. I'd be happy to advise you on your specific situation; you can email me at srudner@rudnermacdonald.com.
"Mandatory Meeting On Unpaid Lunch"
Wednesday, October 08, 2014 3:27:00 PM by Stuart Rudner
Amy, generally speaking an employee that is required to attend meetings is entitled to be paid for that time. I'd be happy to advise you on your specific situation; you can email me at srudner@rudnermacdonald.com.
"Mandatory Meeting On Unpaid Lunch"
Wednesday, October 01, 2014 4:33:00 PM by amy botelho
Recently my employer decided to schedule what they have called "madatory" meetings on an unpaid lunch hour. They do not allow you to make up your 1hr lunch later in the day or leave an hour early. They pacify the other employees because they offer lunch during these meetings and advise that because they are salaried employees the rules are different. I have argued that just because they tacted on the label of mandatory does not mean that they have a right to do do these meetings, the way they have been. Am I right?
mandatory meetings
Sunday, September 28, 2014 1:30:00 PM
my employer makes mandatory meetings on my days off but isnt paying everyone for showing up, is this legal? please email me.
30 hr worker
Thursday, September 25, 2014 12:15:00 PM by Jerry white
i want to know if a union company can demote me to from a 40 hr worker to a 30 hr worker and still post and give overtime on a daily basis ,moreover they never even posted our demotion and did it in the middle of a binding contract.
employer paying for 15hrs of work but I work 9-5, five days a week
Friday, September 05, 2014 8:31:00 AM by Stuart Rudner
Sam, that sounds like an interesting situation but generally speaking, an employer cannot pick and choose which hours of work they pay for. I'd be happy to meet with you to discuss your rights.
employer paying for 15hrs of work but I work 9-5, five days a week
Thursday, September 04, 2014 9:11:00 AM
I have been volunteering at a university / hospital research lab (Ontario) since February and was enrolled as a summer student from June - August. Now they have kept me on as a temporary assistant research technician til December. My offer letter states that I will make $18.65 per hour. However, after speaking with our office manager about how I should report in my hours, she informed me that they would only be paying me for 15 hours of work, but my boss expects me to come in five days a week and work full days the majority of the time. Definetly more than 15 hours to say the least. Is what they're doing illegal? Or are they exempt from paying me those extra hours because of my status or the field I am in?
employer paying for 15hrs of work but I work 9-5, five days a week
Thursday, September 04, 2014 9:08:00 AM
I have been volunteering at a university / hospital research lab (Ontario) since February and was enrolled as a summer student from June - August. Now they have kept me on as a temporary assistant research technician until December. My offer letter states that I will make $18.65 per hour. However, after speaking with our office manager about how I should report in my hours, she informed me that they would only be paying me for 15 hours of work,and they will not be paying me for any additional hours. My boss is expecting me to come in five days a week and work full days the majority of the time. Definetly more than 15 hours to say the least. Is what they're doing illegal? Or are they exempt from paying me those extra hours because of my status or the field I am in?
Overtime in automotive industry for assistant manager
Sunday, August 17, 2014 10:12:00 PM by Stuart Rudner
Jessica, as the article indicates, time beyond 44 hours in a week is generally to be paid at time and a half (in Ontario). However, there are other factors to consider, including the nature of the employee's position. If he would like to discuss his specific situation, please ask him to contact my assistant at mkadric@rudnermacdonald.com.
Overtime in automotive industry for assistant manager
Sunday, August 17, 2014 6:44:00 PM
My husbands employer pays salary for 44 hours per week. My husband works 50 hours per week and was called for mandatory 6 hour overtime when the store was closed for inventory but this is unpaid. Is this legal?
Forced Sunday travel for Monday meetings
Wednesday, August 13, 2014 9:57:00 PM by Stuart Rudner
John, generally speaking, travel time (aside from normal commuting) counts as time worked, and should be compensated. I'd be happy to meet with you to discuss your specific situation. Feel free to email me at srudner@rudnermacdonald.com.
Forced Sunday travel for Monday meetings
Wednesday, August 13, 2014 8:00:00 PM by John lee
Can my employer force me to travel on Sunday once a month for Monday morning meetings? And then travel home on my own time approx 6 hour drive
Can Engineers be forced to work overtime
Wednesday, July 30, 2014 5:23:00 PM by Stuart Rudner
Generally speaking, overtime is voluntary. However, I cannot comment on a specific situation without knowing all of the underlying facts. If you would like to schedule a consultation, please contact me at srudner@rudnermacdonald.com.
Can Engineers be forced to work overtime
Wednesday, July 30, 2014 4:31:00 PM
Can an employer legally force an engineer to work overtime hours in non-exceptional circumstances?
In other words, can the refusal to work unpaid overtime by an engineer result in their legitimate dismissal? Thanks!
Employer doews not pay overtime for extra hours worked
Sunday, July 27, 2014 1:29:00 PM by Stuart Rudner
Yvr, that does not sound like it is a lawful way to compensate for overtime. If you would like to arrange a consultation to discuss your options, please email me at srudner@rudnermacdonald.com.
Employer doews not pay overtime for extra hours worked
Saturday, July 26, 2014 9:59:00 AM by Yvr Man
I found out that company practice is to give so-called Flex time for overtime hours worked at 1:1 ?
essentially you get to bank one hour of overtime for one hour of bstraight time rather than 1.5 hours .

Seems that this "flex time " is flexible for employer as it has no benefit for employee .

BL employment law says that after 8 hrs of work it is time & one half to be paid for the first 4 hrs and Double time . what are your views on this ?
Salaried at 40/hrs a week.. but work 3.75hrs more unpaid??
Thursday, July 17, 2014 6:23:00 PM by Stuart Rudner
Brittany, entitlement to overtime is not dependent on how you are paid (salary vs hourly) but on the nature of your position. If you would like to arrange a consultation to discuss your rights, please contact me at srudner@rudnermacdonald.com.
Salaried at 40/hrs a week.. but work 3.75hrs more unpaid??
Thursday, July 17, 2014 6:12:00 PM by Brittany
Hi there, I missed a few days last month and my boss noted that I was in for 136/160hrs on my paystub.. I am a salaried employee and work 8.75hrs the stub should have reflected 148.75/175.. when I approached her with my confusion she stated my salary is based on a 40hr week... does this mean I am owed OT for those hours??? She said she would try to figure it out for the end of the month just researching my rights.. I am working in Alberta.. thank you
Professionals (Engineers an Overtime)
Tuesday, July 15, 2014 8:27:00 AM by Stuart Rudner
Dan,

While some employees are exempt from statutory overtime pay, they may still be entitled to additional pay contractually. It will depend on the specific circumstances.
Professionals (Engineers an Overtime)
Monday, July 14, 2014 10:53:00 PM
Why are professionals specifically engineers not entitled to overtime pay? I signed a contract to work a specified number of hours per week, can they require me to work more hours then the contract stipulates?
30-minute lunch break
Monday, July 14, 2014 1:40:00 PM by Linda
Is there new legislation that states employees can be fined if they do not take a full 30-minute lunch break? Employer is stating that we will be given a verbal warning if the lunch hour is less than 30 minutes.
Forced to work overtime
Tuesday, June 24, 2014 10:01:00 AM by Stuart Rudner
Kelli, generally speaking, an employer cannot simply change the terms of employment as you describe. However, much will depend upon the specific circumstances. I would be happy to meet/speak with you and your colleagues to discuss the matter in detail. You can reach me at srudner@rudnermacdonald.com.
Forced to work overtime
Monday, June 23, 2014 6:11:00 PM by Kelli
My company is suspending an writing up employees at my work for not showing up on a Saturday to do 8 hours overtime. The employer is making us work and if we do not then actions will be met. Ppl are getting fired cuz they have families an small children they have to be with on weekends. So they can't do every Saturday. The woman who works in HR said it's no longer a 5 day work week it's 6. It's not fair and we have to use vacation pay on a Saturday if we do not show for overtime. Is what my employer doing wrong? Do hey have that right to fire and suspend employees for not doing over time ? Plse help I need advice on this thanks
threatened to be fired for not working overtime
Sunday, June 15, 2014 8:49:00 PM by Stuart Rudner
Amanda, it sounds as though you have several issues that would be worth discussing. We can schedule a time to meet via phone or Skype; please contact me at srudner@rudnermacdonald.com.
threatened to be fired for not working overtime
Saturday, June 14, 2014 4:39:00 PM by amanda
I was scheduled to work from 4 pm to 10 pm ,the restaurant I work at normally closes at 10 pm nightly. The owner informs me he wants me to work until 1 am . I already had plans for after work and wasn't notified prior to my arrival to work today about this schedule change .I told the owner he should have asked about this shift change and told him i wasn't working past 10 pm . He said to work it or be fired , IN FRONT OF RESTAURANT PATRONS , i replied no need to fire me I QUIT . Just this last pay period all staff never got paid on pay day , we all got paid five days late , period prior to that was a day late, I love the job but owner is a sexually harassing as@#$le , What rights do I have in Newfoundland Canada ?
business travel outside of canada
Tuesday, June 10, 2014 8:19:00 AM by Stuart Rudner
Nina, attendance at mandatory meetings, conferences and the like generally counts as time worked. If you would like to discuss your specific situation, please contact me at srudner@rudnermacdonal.com.
business travel outside of canada
Monday, June 09, 2014 11:32:00 PM by Nina
Our staff was informed that we had to participate in a seminar held in Florida this past week. It was for a new direction the owners want their business to go to increase production and as managers we were required to participate in it. Our flight, course and lodging was paid.The daily course times were from 9:30am-5:30pm with a 2.5hr break throughout. In the evenings there was an expectation by the owners to go out for dinner and other activities. Now after the fact, as we inquired if we would be paid for time worked while a the course, they said no, because they paid lavishly on our dinners and all other expenses. Had we known that we would not be paid for working time, most of us would not have gone, because we can't afford not to receive a pay cheque.
There was no prior communication to this...
What is the law on that in Canada, particularly Ontario??

Thank you, Nina

Mandatory overtime despite Collective Agreement
Wednesday, June 04, 2014 12:08:00 AM by Stuart Rudner
Jen, if you are part of a collective bargaining unit, then the union is your legal representative and you should work through them.
Mandatory overtime despite Collective Agreement
Tuesday, June 03, 2014 3:11:00 PM by Jen
My collective agreement clearly states that our regular hours of work are Mon-Fri 8:30am-4:30pm with an hour unpaid lunch break. All hours worked beyond those indicated above have been paid at the appropriate rate and ALL overtime is offered in seniority order. Recently however, our employer has informed us that overtime is mandatory (even despite it being optional over my past 18 years) and that we WILL work what has been posted for us 1 month in advance. Can they do this? I mean what is the point of setting hours in our contract if management can force us to work whenever they choose?
Hourly overtime
Wednesday, May 28, 2014 6:05:00 PM by Stuart Rudner
Nancy, as the article explains, entitlement to overtime has nothing to do with whether the employee is paid by the hour or by salary; exemptions are based upon the nature of their duties.

If you would like to discuss your personal situation, please contact me at srudner@rudnermacdonald.com.
Hourly overtime
Wednesday, May 28, 2014 5:14:00 PM by Nancy
Is there such a thing as an hourly exempt employee in Canada? Meaning that if they are hourly and the position is considered exempt, they would then be compensated at a straight time rate instead of time and a half for any overtime hours worked. Or are all hourly employees considered non-exempt and receive time and a half for overtime hours? Does exempt and non-exempt only apply to salaried employees? Thank you for any clarification you can provide!
Kitchen Supervisro
Saturday, April 26, 2014 8:55:00 PM by Stuart Rudner
Chris, I'd be happy to help you offline. Please contact me at srudner@rudnermacdonald.com.
Kitchen Supervisro
Friday, April 25, 2014 5:47:00 PM by Chris
Hi I am in Calgary and am concerned that I am not receiving either OT pay or Days off in Lieu. My title is Culinary Supervisor and however I do very little to no supervision almost every shift. I am a glorified prep cook and am concerned that my employer is using the "title" as a means of avoiding paying myself and other "supervisors" in the restaurant Overtime pay and yet it is expected of us to work past our scheduled time. Their is no asking of us to do so it is just something that is "expected of us" I am also not receiving any days off in lieu of the lack of OT pay. Please respond to me I am concerned and this needs to be fixed.
Mandatory overtime
Thursday, April 24, 2014 8:24:00 AM by Stuart Rudner
Boe, I would be pleased to advise you offline. Please email me at srudner@rudnermacdonald.com.
Mandatory overtime
Wednesday, April 23, 2014 11:06:00 PM by Boe
I'm facing discipline for failing to work mandatory overtime, because I had to be home to provide my son with child care! Is there anything I can do, can someone please help me?
Overtime risks and misconceptions
Wednesday, February 12, 2014 6:56:00 PM by Stuart Rudner
Hi Kody,

I cannot offer advice via internet but would be pleased to give you the advice you need. You can reach me at srudner@rudnermacdonald.com.
Overtime risks and misconceptions
Wednesday, February 12, 2014 2:27:00 PM by Kody
Hi there so I'm located in Calgary Alberta and I was wondering if the regulations here are the same across Canada with regards to overtime. For example we are working mon-Thursday 12 hour days and Friday 10. Can my employer force is to work Saturdays or after 8 hours a day?
Can I Say No To Mandatory Overtime
Sunday, January 12, 2014 7:52:00 PM by Stuart Rudner
P, I cannot offer legal advice online but invite you to contact me at srudner@rudnermacdonald.com.

Stuart
Can I Say No To Mandatory Overtime
Saturday, January 11, 2014 3:37:00 PM
hi the other day i was told i had to stay mandatory overtime but they didnt tell me in advance they told me when i punched out.? Is there a requirement of how much time they need to tell you in advance? Also i told them it was personal but people told me iam get in trouble so i told them its because its saturday and i need to go to the bank to cash in my gst check because i have no money until thursday when we get payed... i need the money for bus fair to get to work and for groceries the bank closes AT1 my shift was done at 11 and they told me i have to stay 2 hours long n i told them i can't. Can i get fired for this???
Overtime pay exceptions
Saturday, November 30, 2013 9:14:00 AM by Stuart Rudner
Jennie, that sounds like another myth. Where did you hear it?
Overtime pay exceptions
Friday, November 29, 2013 7:18:00 PM
Is it true that if a business has less than 25 employees then the employer is exempt from paying overtime?
unauthorized overtime
Wednesday, October 09, 2013 12:49:00 AM by Steve
I drive a delivery truck for a school board in alberta. I am given a workload hat cannot possibly be done in the time given and I regularly put in overtime overtime. management says that it was not authorized and refuses to pay. What can I do?
extra hours vs overtime!
Sunday, June 23, 2013 10:34:00 PM by Stuart Rudner
Lorraine, it is not that simple. First, there are limits on how long the time off in lieu can be deferred, failing which it must be paid in cash. Similarly, if the employment relationship ends, accrued OT must be paid.
extra hours vs overtime!
Friday, June 21, 2013 2:57:00 PM
I have heard of some workers who ask to work extra hours to bank time for future time off. They can bank twenty hours in a week, but are given time off hour for hour even though they are working well in excess of a regular work week. If an employer agrees that employee X can work extra for a time bank because he doesn't then need to hire an employee Y, can he feel confident he does not have to pay overtime pay/hours?
Canada Post's new way of doing business.
Monday, February 04, 2013 4:54:00 PM by Stuart Rudner
Bill,

Thanks for your post. I encourage you to contact me at srudner@millerthomson.com so we can discuss.
Canada Post's new way of doing business.
Sunday, February 03, 2013 12:08:00 AM
Canada Post has adopted a new delivery model in which many carriers are putting in overtime, to the tune of 1-3 hours daily. I, myself, currently average a 9-10 hour workday. While this looks good on payday, I'm exhausted. As a federal agengy, we're governed by the Canada Labour Code. I've skimmed through it online and have read that an employer cannot cause an employee to work longer than 8 hours in a day or 40 hours in a week. I go over both of these totals weekly, however not being a lawyer, I have trouble understanding many of the sub-sections after that statement.
I've been told by some that I can refuse any work over 8 hours a day but I already have a formal meeting lined up in 3 days to discuss my constant overtime. If my union cannot do anything about it, would the Canadian gov't provide free counsel for me to challenge my employer on my own?
Payment for hours travelled on a weekend
Tuesday, January 22, 2013 11:01:00 PM by Stuart Rudner
Karen, I can't offer advice on this public blog, but would be happy to speak with you privately. Feel free to call or email me.

Stuart
Payment for hours travelled on a weekend
Tuesday, January 22, 2013 6:02:00 PM
I need to travel to a work event in the USA. The flight is 5 hours plus 2 hours are required for airport security clearance - total 7 hours. The event is Monday and Tuesday - thus I need to fly out on the weekend, or the Friday before.

If I fly out on the weekend, is my employer obligated to pay me for 7 hours travel time since I normally would not work on Sat or Sunday?

Time worked the week before would be 9 - 5:30 Mon - Friday, plus weekend flight. (37.5 + 7 =44.5)

Week of event - Sunday - 3 hours; Monday 7:30 - 7; Tuesday 7:30 - 5:30; Wednesday - 6 1/2 hour flight home.
Thurs/Friday - 9 - 5:30 each day.
(46 hours)

When does the work week start - on a Saturday/Sunday or Monday?
Under these circumstances, what overtime would an employee be entitled to - I am not a manager.

The employer is requiring me to either fly on the weekend without any compensation or recognition (neither banked hours or overtime), or if I choose to go down on the Friday, I must take the Friday as a vacation day (7 hours travel time in it). If I refuse, they have threatened to not allow me to go, though work at the event is part of my formal job description (13 years+).
Are they allowed to threaten to remove part of my responsibilities in reprisal for asking for legitimate overtime?
For the record, I would have been satisfied to travel Friday without it being classified as a vacation day and no overtime would be submitted for the week of the event, nor additional compensation or banked hours expected.

(Payment for expenses during time away up to the Sunday is acknowledged to be at my own expense.)

Suggestions as to what to do?
Salaried Staff hours changing but nothing in writing
Thursday, January 03, 2013 7:24:00 PM by Alison
When I first starting working for the company 21 months ago, I was informed my hours of work were 37.5 per week (8.30 to 5 with an hour for lunch). During my time, I have stayed and worked over to get work through. My manager and VP were happy for me to do it and often thanked me as work was getting behind due to my colleagues absences and standard of work going up and down. I was told to log the hours by my manager and he would ensure that I would get the time back. Everything was fine until about 6 months ago. My colleague left and another girl moved over from another department - she did not want to do overtime. Suddenly I was being asked why I needed to work over!! A month ago we had a meeting and HR informed us that:
1 - work hours were only between 8.30 and 5 - everything had to be done in that time. Working over had to be authorised (I have no problem with that at all)
2 - when the HR Manager set out our salary, she looked at the going rate in the market place and paid us that. But that going rate was for 40 hours, so we were getting paid for 40 hours anyway, so shouldn't be banking hours (everyone in the offices works 37.5 hours - not 40)
I am now having trouble getting back the banked hours for time that I have worked.
I find this interesting that this has NEVER been mentioned before - especially when I was working over so much - but its only now that I want some of the time back that I get told this.
And as for the 'getting paid for 40 hours anyway' - this is the first I (or my supervisor who has worked there for 9 years) have heard of it. Surely if the company pays us above the going rate, that is they choice!

Can the company do all of this - and can they also (in the future) - demand that we work more hours than the 37.5 with no time off in lieu because of this 'you are getting paid for 40'
staying at work 24/7
Sunday, December 30, 2012 7:27:00 PM
i live and work on site as medic in oil/gas fields in alberta...i am only paid for 12 hours/day but expected to stay on site for 24hrs 7 days a week, weeks on end...
overtime/time in lieu
Sunday, December 30, 2012 11:18:00 AM
I work in a School Board in Alberta. In our department we have a lot of different cultures represented. The management knows that these cultures are such that the women don't complain or say "NO" to "requests/orders" for overtime. They have been told that they can take time in lieu either the day before or the day after the event but if that does not work for them (i.e. if they have already been booked again for another event) then they are loosing that time (too bad, so sad) and they will not get paid for it because we don't have the budget. Also, they were told that they can not accumulate the time so that they could (once the hours are there) take a whole day off. I know some of this is looked at as "volunteering" but I don't believe you can call it that if it happens almost every day and/or every week. I feel they are abused and I would like to help them but don't know how to - and without getting into trouble myself.. Any suggestions??
Overtime risks and misconceptions
Sunday, December 30, 2012 11:15:00 AM by kinsaleboyle@gmail.com
I am paid at an hourly rate, to work 40 hours. I am required to be on call too, which means responding to phone calls after business hours for one week per month, which can take up to 3 hours each evening. I am given one day off per month in lieu of the time on call, but no pay nor extra time off when I work up to 70 hours per week. I never work under 60 hours per week. My Director told me that as a manager, these kinds of hours are expected and there will be no further compensation and said that is the case as I am a salaried manager.

I feel that I should be entitled to more time off in lieu.

Also, my director has implemented a policy that requires managers to work statutory holidays and one weekend in four, with only time off in lieu at a straight-time rate; i.e., work a Stat. holiday but get only 7 hours off in lieu.

Am I entitled to time in lieu off at the rate of stat. pay?
"Mandatory" Overtime
Wednesday, October 31, 2012 9:32:00 AM by Alex
I work at a plant, and because of negligence and Hurricane Sandy, we lost power for nearly a full day. I went in for my shift last night, and to my surprise, overtime is apparently 'required' on Friday night, which is our Saturday, and therefore none of us nighties are ever scheduled for. It was not requested. The lead didn't go down the line and ask for overtime volunteers. The notice was simply posted that we no longer have a Saturday this week. I simply informed my lead that I wouldn't be coming in as I have things to do that were planned long in advance. Too bad, so sad.

My question, I suppose, is this: can an employer "require" overtime if it's outside the employee's designated workweek and the employee wasn't given a chance to agree or disagree?
Overtime risks and misconceptions
Monday, October 15, 2012 9:26:00 AM by Stuart Rudner
I would definitely consult with a lawyer to explore and understand your rights and obligations.
Overtime risks and misconceptions
Monday, October 15, 2012 12:12:00 AM
I am employed for 4 months and have recently worked over time during inventory count days, extra hours on Friday and full 11 1/2 hours on saturday with only less then 30 minutes break. I was forced to come in on Sunday for another 7+hours with no breaks. I later found out that I wasn't going get paid nor get days off in lieu of hours worked. I was told that it is part of my job and that company has been good to employees and that no employees were paid. Can I quite this job and get back on EI?

Salaried employee
Wednesday, February 29, 2012 12:04:00 AM
I am a salaried employee (non managerial). I was hired on the basis of $17 per hour based on a 37.5 hour week job. I actually work anywhere from 44 to 60 hrs a week. I am paid bi-monthly — on the 15th and end of the month. I have 24 pay periods a year and bi-weekly has 26 pay periods. Am I wrong to think that I am being cheated out of two pay periods?
Different calculations for overtime
Thursday, February 23, 2012 4:14:00 PM by Stuart Rudner
The Ministry of Labour sets out guidelines for payment of overtime pay to commissioned employees:

Employees Who Are Paid Wages That Are Not Based on the Hours Worked

Some employees' wages are not based on the number of hours they work in a week but instead are paid by the number of pieces they complete and/or by commission. These employees must be paid at least the minimum wage for all the hours they work. They are also usually entitled to overtime if they work more than 44 hours a week.

Calculating the overtime for piecework or straight commission employees

Becka is paid on a piecework basis. Rhian earns straight commissions. They both worked 48 hours this work week and each received a total of $480.00.

First the regular (non-overtime) hourly rate of pay is calculated:

$480.00 ÷ 44 hours = $10.91

Their regular hourly rate of pay is $10.91.
Then the hourly overtime rate is calculated:

$10.91 regular rate × 1½ = $16.37

Their overtime rate is $16.37 for every hour in excess of 44 hours.
Next, the amount of overtime worked is calculated:

48 hours − 44 hours = 4 hours of overtime.
The overtime pay is calculated:

4 hours × $16.37 an hour = $65.48

They are each entitled to $65.48 in overtime pay.
Finally, the regular pay and overtime pay are added together:

Regular pay: $480.00
Overtime pay: 65.48
Total pay: $545.48

Result: Becka and Rhian are each entitled to total pay of $545.48.

Calculating the overtime for hourly rate plus commission employees

Justine is paid $15.00 an hour plus commissions. In one work week she worked 50 hours and was paid $750.00 in hourly wages plus $200.00 in commissions.

First Justine's regular rate is calculated:

$750.00 + $200.00 = $950.00 total wages paid

$950.00 ÷ 44 hours = $21.59 an hour

Justine's regular rate is $21.59 an hour.
Then her overtime rate is calculated:

$21.59 regular rate × 1½ = $32.29

Her overtime rate is $32.39.
Next her overtime wages are calculated:

6 hours × $32.29 an hour = $194.34

She earned $194.34 in overtime wages.
Because Justine was paid $15.00 per hour for all hours she worked, including her 6 overtime hours, she has already received $90.00 in respect of her overtime entitlement.

Result: Justine was entitled to $194.34 for overtime pay and was paid $90.00. Her employer therefore owes her an additional $104.34.
Different calculations for overtime
Thursday, February 23, 2012 3:59:00 PM by Phil
Why would the overtime calculation be different for an employee paid straight commission or an employee paid salary (or hourly) and commission? If both employees earned $700 and worked 50 hours for the week. The employee being paid salary and commission will be paid less.
Can a salaried employee be forced to work unpaid overtime?
Wednesday, February 22, 2012 9:46:00 AM by Stuart Rudner
As set out in the article, entitlement to overtime pay is not based on the method of payment (i.e. salaried or hourly) but on the duties of the worker. True managers and supervisors are exempt.
Can a salaried employee be forced to work unpaid overtime?
Wednesday, February 22, 2012 2:06:00 AM
Formerly the Supervisor of my department, I was demoted and assigned to the Evening Shift. As a salaried employee, I work the company's standard 37.5 hours per week. I am now being told that I must work unpaid overtime, as requested, due to my salary exceeding the pay scale for this diminished role. Can I refuse to work unpaid overtime without fear of termination with cause? I did work some overtime for my previous supervisor in exchange for banked vacation hours, but this is now being denied by my new supervisor. Please advise. Thank you.
overtime for a car salesman
Monday, February 13, 2012 8:09:00 AM by Stuart Rudner
Hi Phil,

Car salespeople are entitled to overtime pay in Ontario. According to the Ministry website:

Calculating the overtime for piecework or straight commission employees

Becka is paid on a piecework basis. Rhian earns straight commissions. They both worked 48 hours this work week and each received a total of $480.00.

First the regular (non-overtime) hourly rate of pay is calculated:

$480.00 ᅱ 44 hours = $10.91

Their regular hourly rate of pay is $10.91.
Then the hourly overtime rate is calculated:

$10.91 regular rate ? 1? = $16.37

Their overtime rate is $16.37 for every hour in excess of 44 hours.
Next, the amount of overtime worked is calculated:

48 hours ? 44 hours = 4 hours of overtime.
The overtime pay is calculated:

4 hours ? $16.37 an hour = $65.48

They are each entitled to $65.48 in overtime pay.
Finally, the regular pay and overtime pay are added together:

Regular pay: $480.00
Overtime pay: 65.48
Total pay: $545.48

Result: Becka and Rhian are each entitled to total pay of $545.48.

I'd be happy to work with you to make sure this is done properly. Employment agreements and policies can be used effectively to control your obligations.
overtime for a car salesman
Saturday, February 11, 2012 3:03:00 PM by phil
is overtime payable to a commission car salesman at a dealership. if it is, how is it calculated?
Overtime in excess of 40 hours but under 44 hours per week
Friday, January 13, 2012 8:50:00 AM by Stuart Rudner
Good point Brian. Gets back to one of my mantras - use employment agreements. In this context, employers can do in order to establish the expected hours of work - this will be particularly relevant for salaried employees who may take the position that they are entitled to overtime if they stay late one day.
Overtime in excess of 40 hours but under 44 hours per week
Friday, January 13, 2012 12:45:00 AM by Brian Kreissl
Another strange misconception I've heard is employers believing that any hours worked in excess of an employee's standard work week (say 40 hours) are not compensable as long as they do not exceed the 44 hour threshold (under the Ontario ESA). While those hours don't have to be paid at time-and-a-half, they do have to be paid at straight time.