According to Restaurants Canada, the Canadian food service industry employs over 1.2 million people. With so many people involved in this industry, whether as franchise owners, professional chefs or part-time servers, it is important to be aware of the workplace rights and obligations that apply. The food services industry is in many ways unique, facing safety and cost challenges that many other sectors do not. With that in mind, we set out to provide an overview of some key employment rights and obligations:
Last April, we wrote about an interesting decision from the Ontario Superior Court concerning when the limitations period begins to run for claims of wrongful dismissal and statutory severance pay. In that case, the Court held that the limitation period to claim unpaid statutory severance pay commences as soon as working notice of dismissal is issued to an employee.
Last month, the provincial government passed into law Bill 148, the Fair Workplaces, Better Jobs Act, 2017. This Act brings with it significant changes to employment law in Ontario for both employees and employers. In particular, Bill 148 will overhaul parts of the Employment Standards Act, the Labour Relations Act and the Occupational Health and Safety Act.
Q&A is a recurring series on the Vey Willetts LLP blog. The aim is to provide quick answers to questions we commonly encounter in our day-to-day practice of employment law. In this edition, we focus on overtime pay.
Q. Who is entitled to receive overtime pay?
A. Generally, all employees in Ontario are entitled to receive overtime pay when they work more than 44 hours in a week. Section 22(1) of the Employment Standards Act, 2000 requires that “an employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each work week.” This applies to employees regardless of whether they are working full-time, part-time, are students, temporary help agency employees or casual workers.
Q. Are any employees not entitled to receive overtime pay?
A. While the majority of employees in Ontario are entitled to receive overtime pay for all hours worked beyond 44 hours per work, some workers are excluded from the overtime provisions. These excluded employees are listed in Regulation 285/01, and include (but are not limited to):
- Persons whose work is “supervisory or managerial in character” (generally, managers and supervisors will be excluded from the overtime pay entitlement, however, this will vary on a case-by-case basis, depending on the true nature of their role and whether such functions are only performed on an irregular or exceptional basis);
- Persons employed as the superintendent, janitor or caretaker of a residential building, in which they reside;
- An Information Technology (“IT”) professional; or
- Duly qualified practitioners of architecture, law, professional engineering, public accounting, surveying or veterinary science.
To assess whether an employee falls within the scope of the overtime exclusions, it is necessary to consider the role in which he/she is working (i.e. practically speaking, what is the nature of your work). While a title may be suggestive of the true nature of an employee’s role, it will never be determinative (i.e. an employee could be work in the role of “Office Supervisor” but depending on the day-to-day nature of their duties still be protected by the overtime pay provisions).
Q. I am paid an annual salary, am I entitled to overtime pay?
A. Regardless of whether an employee is paid an annual salary, or an hourly wage rate, he/she is entitled to receive overtime pay when working more than 44 hours per week (unless the employee falls within the scope of the excluded categories of employees – as discussed above).
Q. I am constantly expected to send and respond to emails outside of my regular working hours, am I entitled to overtime pay for this?
A. If you are required to be sending and checking emails while not at work, you are working, and may very well be entitled to receive overtime pay (provided you do not fall within the exclusions set out above). As such, you should speak with your employer about its expectations in this regard, and track how frequently you are being required to work outside of your regular working hours.
Q. My employer has an overtime policy that requires pre-authorization of overtime hours. Does that limit my entitlement to overtime pay?
A. Some employers operate under the misconception that they are not required to pay overtime where they have in place an overtime policy requiring pre-approval, and employees have performed work without first seeking the required pre-approval. Employers, and employees, should be aware that while a policy regarding overtime may be a useful operational tool, it is not determinative of an employee’s entitlement in this regard. If an employee performs work beyond 44 hours per week, he or she will be entitled to receive one and one-half times his or her regular rate of pay.
Q. How do I show that I have been working overtime?
A. In order to prove that you have worked overtime hours, you should carefully track and record any work that you are required to perform beyond 44 hours per week. In this regard, retain relevant emails, time sheets and/or work calendars. If there is a subsequent dispute with your employer about claimed overtime hours, you must be able to demonstrate performance of the work for which additional pay is sought.
Q. We operate a small business, how can we best comply with the overtime rules and avoid liability?
A. Employers can effectively manage their employee overtime pay obligations by:
- Employing staff pursuant to written employment agreements, wherein overtime requirements, and staff expectations, are clearly stated. For example, employers may consider including language to the effect that employees must first obtain written consent from their supervisor prior to performing any work beyond their regular working hours;
- Implementing an internal tracking system aligned with the requirements in their written employment agreements, to ensure that the business maintains accurate records of overtime work, and a clear understanding of the operating costs associated with overtime hours; and
- If an employer is uncertain whether a particular role within its organization falls within an exception to the overtime pay requirements set out in the Employment Standards Act, seek an early assessment from an experienced employment lawyer to avoid unanticipated liability at a later date.
- The Ministry of Labour provides an online tool listing jobs and industries with exemptions or special rules.
- The Ministry of Labour also provides an overview of the provincial overtime requirements.
*This Q&A article is provided solely for informational purposes. It is not specific legal advice. Should you wish to receive specific legal advice regarding your particular circumstances, please contact us directly.
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or firstname.lastname@example.org
Section 54 of the Ontario Employment Standards Act requires that employers in the province must provide either notice or pay in lieu of notice, up to a maximum of 8 weeks, if they dismiss an employee (except in cases of serious employee misconduct).
The Lawyer’s Daily quoted Vey Willetts' Paul Willetts in a May 26, 2017 article titled “Changing Workplaces Review may spur sweeping labour law changes in Ontario.” The article explores the recommendations set out in the Changing Workplaces Review Final Report and how these changes, if implemented, may affect Ontario employees and employers.
A recent decision from the Ontario Superior Court of Justice touches upon a little discussed area of employment law. Specifically, when does the limitation period clock start running for a claim of wrongful dismissal?
Vey Willetts lawyer Paul Willetts was quoted in the March 6, 2017 edition of The Lawyer's Daily in an article entitled "Big changes could be on Way for Ontario workplace landscape." The article discusses the provincial government's Changing Workplaces Review and some of the changes employees and employers in Ontario may expect to see.