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.
A dismissal from employment is rarely pleasant for anyone involved. Frustration, anxiety and hurt feelings are all common by-products. But how do we assess whether an employee has suffered harm beyond the ordinary due to a poorly handled termination?
Vey Willetts lawyer Paul Willetts was quoted in the October 10, 2017 edition of The Lawyer's Daily. The article, "Timing, Privacy Issues Raised over Ontario's Proposed Domestic Violence Leave Bill," considers recent proposed legislation that seeks to provide employees with up to 10 days of paid leave, and up to 15 weeks of unpaid leave per year to deal with issues arising from episodes of domestic or sexual violence.
All Ontario employers have a duty to protect employees from workplace harassment. These protections are set out in the Occupational Health and Safety Act (“OHSA”).
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.
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.
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):
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).
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).
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.
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.
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.
A. Employers can effectively manage their employee overtime pay obligations by:
*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 info@vwlawyers.ca
A common question employment lawyers are asked (by both employees and employers) is whether it is legal to make secret recordings while at work. A variety of circumstances may provide the motive for such action. An employee concerned they are being bullied may want to record proof of harassing comments made to them. Likewise, a supervisor may wish to secretly record the contents of a disciplinary meeting to safeguard themselves against future allegations of what was said.
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).
Vey Willetts lawyer Andrew Vey recently authored an article in the May 2017 edition of HR Update entitled, "Just Accommodate Me: Legal Obligations in the Accommodation Process." The article considers the roles that the employer, the employee and the union (where present) are required to play in ensuring that reasonable accommodation in the workplace is provided.
