Rules around overtime and jury duty vary across provinces
Question: When do you have to have employees sign off for overtime hours?
Answer: The answer depends on the jurisdiction. For employees who are eligible for overtime in Ontario, overtime is payable after the 44th hour of work in one week. However, employers and employees can agree to calculate overtime entitlement over a longer time period. In that case, the average number of hours worked per week is used to determine overtime entitlement.
For example, an agreement could state hours will be averaged over a two-week period. The employee could work for 50 hours in week one and 38 hours in week two. The total number of working hours in two weeks would be 88, which averages 44 hours a week, so overtime would not be payable under the agreement. Note, however, that an agreement must be approved by the director of employment standards in order to be valid.
Other provinces have similar requirements but since the overtime threshold varies from province to province, an agreement that works in one province may not work in another. In British Columbia, the overtime threshold is 40 hours, so the example above that averages 44 hours of work per week would not remove the employer’s obligation to pay overtime.
In Alberta, the requirement is more flexible. It allows an employee to bank extra time worked and take that time off with pay at any point within three months after working it.
Some provinces do not allow averaging agreements. In those provinces, employees cannot sign off on their overtime entitlements. Employers that are considering entering into an averaging agreement should check applicable jurisdictional requirements to see if these are allowed and, if so, what rules apply.
Question: What are an employer’s pay obligations when an employee must attend court?
Answer: Generally, legislation requires employees be given unpaid time off work to serve on a jury. Depending on the province or territory, this requirement is contained in either employment or labour standards legislation, or in legislation respecting juries. Even though this time off is generally unpaid, an employee’s benefits and seniority continue while the employee is away.
The situation is slightly different when it comes to an employee who must attend court as a witness. If a person receives a summons to appear at court, she must attend or risk facing punishment for contempt of court. Many jurisdictions (but not all) require employers to give employees time off if they have been served with a summons to attend court as witnesses.
Newfoundland and Labrador is the only jurisdiction where employees must be given paid time off to attend court. Under the Juries Act, a person summoned for jury service or required as a witness at a criminal case or public inquiry must be paid as if she were at work.
A person suing, being sued or on trial for a criminal or provincial offence does not have the same protection as a witness or juror, even though that person may well act as a witness during the trial. An employer does not have to give an employee unpaid time off if she wants to fight a traffic ticket, for example.
It is important to remember these are minimum requirements only. An employment contract, policy or collective agreement might require a portion or all of an employee’s time spent as a witness or juror to be paid.
This question was answered by the editors of Consult Carswell, a Canadian HR work solution that delivers best practices, legal compliance, news, articles and a suite of ready-to-use tools in one online service. For more information, visit www.consultcarswell.com.
