Show me the money: Overtime pay

Many employers have written overtime policies.

The policies usually have two things in common.

First, the employee is required to obtain prior written permission to work overtime, in other words, unauthorized overtime is not compensated. Sometimes this is modified by allowing employees to receive compensation if there were extenuating circumstances that didn’t permit them to seek pre-approval and they sought approval as soon as possible after having worked overtime.

Time off in lieu

Second, many of the policies allow the employee to take time off in lieu of overtime pay.

The reasons for these policies are clear. Employers are entitled to have control over employment costs. The employer determines the work schedules. Employers do not allow employees to self-determine whether overtime is justified. They don’t want employees to come forward days or weeks later and state that they are entitled to overtime pay for having previously worked extra hours. However, there may be emergency situations where pre-approval is not practical. In those cases immediate approval after the fact should be sought.

These policies make sense and, I believe, are legal. The problem some employees face is that they are routinely expected to work extra hours to get their job done. Some managers sit back knowing that employees are routinely working extra hours without compensation. Such conduct is morally wrong and violates employment standards laws. If the manager requires or knowingly permits employees to work overtime then overtime pay should be provided even if pre-approval has not been sought or obtained. So if your manager implicitly requires overtime work or sits back knowing and allowing overtime then overtime pay should be paid.

Unfortunately, it’s difficult for many employees to come forward and complain even if their job routinely requires overtime. They fear that their jobs may be in jeopardy or that they will suffer some form of retaliation if they complain. While retaliation for asserting an employment standards right is not allowed, it does occur and many are not aware of their rights.

There’s nothing wrong with a policy that allows employees to take time off in lieu of overtime pay. Just remember that it’s the employee’s option and the employee is entitled to receive 11/2 hours of pay or time off for normal overtime hours worked.

Ontario overtime laws start at 44 hours a week, while federally regulated employees (like bank employees) enjoy overtime pay at 40 hours. These laws represent the minimum standards. There’s nothing to stop an employer from providing enhanced overtime benefits and many do.

Excluded jobs

But remember that many categories of employees are not entitled to overtime pay. In Ontario these include certain professionals (architects, lawyers, engineers, accountants, surveyors, doctors, dentists, information technology), certain salespeople, landscape gardeners, swimming pool installers, employees in various businesses (mushroom growers, flower growers) and students employed at camps. The complete list is quite lengthy and if you want to check your own position call the Ministry of Labour.

Managers and supervisors are entitled to overtime pay if they perform non-managerial or non-supervisory tasks on a regular basis.