Overtime exemption for IT professionals

Information technology professionals who are exempt from overtime provisions of employment standards legislation

Brian Johnston
Question: Has the overtime exemption of information technology professionals been challenged? Is this law still in effect? Is there any reason we should not depend on using this exemption?

Answer: Information technology professionals are only exempt from employment standards legislation in Ontario, Nova Scotia, British Columbia and Alberta. These statutes contain specific definitions of “information technology professionals” (or “high technology professionals” in British Columbia) which limit the scope of the exemption. For example, the B.C. and Nova Scotia definitions do not include people employed to provide basic operational technical support.

In Ontario, the Exemptions, Special Rules and Establishment of Minimum Wage Regulations, exempts information technology professionals from the overtime provisions. An information technology professional is defined as “an employee who is primarily engaged in the investigation, analysis, design, development, implementation, operation or management of information systems based on computer and related technologies through the objective application of specialized knowledge and professional judgment.”

According to the Employment Standards Act of Ontario, 2000, this definition does not include all people working in the information technology field, but is limited to those professional employees who use their specialized knowledge and professional judgment in their work.

Therefore, not every employee working in the information technology field will be exempt from overtime provisions. Recently, a number of class action lawsuits have been filed against CIBC, KPMG and Scotiabank by employees claiming they are owed for overtime they worked but were never paid for. While these lawsuits are not directed at information technology professionals, they provide reason for all employers to review current overtime policies to ensure they comply with the relevant employment standards legislation.

Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or [email protected].

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