Defining who does and doesn't get overtime pay
Question: What are the definitions of a manager or supervisor to be exempt from overtime? What other job classifications should be paid overtime and are there exceptions for any of them?
Answer: Employment standards legislation sets out the threshold number of hours of work per week at which the requirement for overtime pay — or time off in lieu — is required. The threshold varies from jurisdiction to jurisdiction. Overtime is typically calculated based on the hours worked in a week, rather than daily. The requirement is for one and half times the regular rate of pay or time off at that rate.
As recent class actions have made clear, some employers are not paying overtime when they should be. Among other areas of confusion, there is a widespread but inaccurate belief that simply because someone is paid by salary, as opposed to an hourly wage, she is not entitled to overtime pay. This is completely false and in fact legislation like Ontario’s Employment Standards Act specifically addresses how overtime is to be calculated for such individuals.
As the question suggests, managers and supervisors are typically not entitled to overtime or time off in lieu. Among other groups that are exempt from overtime regulations are persons “whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis.”
Notably, the exemption does not simply refer to managers and supervisors, as the intention is clearly to go beyond formal titles and assess whether the individual’s position is “supervisory or managerial in character.” It doesn’t matter what the employees’s job title is, nor does it matter if she performs non-managerial tasks every now and then. Another group exempted from entitlement to overtime is information technology professionals. This is something many organizations and information technology professionals are not aware of.
As for employees who carry out a variety of duties or switch between two or more positions, Ontario’s Ministry of Labour website says “if at least 50 per cent of the hours the employee works are in a job category that is covered (by the requirement for overtime pay), the employee qualifies for overtime pay.”
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or [email protected].
Answer: Employment standards legislation sets out the threshold number of hours of work per week at which the requirement for overtime pay — or time off in lieu — is required. The threshold varies from jurisdiction to jurisdiction. Overtime is typically calculated based on the hours worked in a week, rather than daily. The requirement is for one and half times the regular rate of pay or time off at that rate.
As recent class actions have made clear, some employers are not paying overtime when they should be. Among other areas of confusion, there is a widespread but inaccurate belief that simply because someone is paid by salary, as opposed to an hourly wage, she is not entitled to overtime pay. This is completely false and in fact legislation like Ontario’s Employment Standards Act specifically addresses how overtime is to be calculated for such individuals.
As the question suggests, managers and supervisors are typically not entitled to overtime or time off in lieu. Among other groups that are exempt from overtime regulations are persons “whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis.”
Notably, the exemption does not simply refer to managers and supervisors, as the intention is clearly to go beyond formal titles and assess whether the individual’s position is “supervisory or managerial in character.” It doesn’t matter what the employees’s job title is, nor does it matter if she performs non-managerial tasks every now and then. Another group exempted from entitlement to overtime is information technology professionals. This is something many organizations and information technology professionals are not aware of.
As for employees who carry out a variety of duties or switch between two or more positions, Ontario’s Ministry of Labour website says “if at least 50 per cent of the hours the employee works are in a job category that is covered (by the requirement for overtime pay), the employee qualifies for overtime pay.”
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or [email protected].
