Hours of Work & Overtime

If you work for a company that falls under the jurisdiction of Province of Ontario, you are covered under the Employment Standards Act, 2000. This Act defines minimum standards an employee is entitled to under the contract of employment. This contract need not be in writing, a verbal contract is also valid. If you work in a place where there is a union, you are not covered under this Act. The collective agreement would deal with these issues and you contact your union in case of difficulties.

Generally, the employer can ask an employee to work 8 hours/day or if the employer has established a different number of hours/day. The total hours cannot exceed 48 hours per week without the approval of the Ministry of Labour. The employer and employee may agree in writing to work more than 48 hours/week up to 60 hours/week but the Ministry must approve such an arrangement. Without the Ministry’s approval, such an arrangement to work longer hours is not valid and if the employee is asked to work longer than 48 hours per week, he/she should inform the Ministry without fear of repercussion. The employee can inform the Ministry without having to identify himself/herself. Only the company where the employee is working need be identified. However, under some circumstances, such as, if there is an emergency or something unforeseen has occurred or urgent repair work is needed, the employer may ask the employee to work longer hours without seeking the Ministry approval.

Under no circumstances, an employee can be made to work longer than 13 hours/day.

In most cases, the employee can withdraw his/her consent to work longer than 48 hours/week by giving two weeks written notice. The employer too can cancel the agreement by giving the employee a reasonable written notice. Once the agreement is cancelled, the employee cannot be made to work longer than 48 hours/week. In some situations, both parties have to agree to cancel the written agreement to work longer than 48 hours/week.

Regardless whether the employee has entered into voluntary arrangement to work longer than 48 hours or is required to work under special circumstances, he/she is entitled to overtime pay after 44 hours/week. The overtime pay is 1.5 times the hourly rate. The overtime pay is based on weekly hours rather than the hours he/she works on a daily basis even if it is more than 8 hours/day.

The employer must give a break of 30 minutes after 5 hours of work. The employer does not have to pay for the break unless the contract of employment calls for it. The employee is free to leave his work place during the break. The parties can also agree to two 15 minutes break instead of one 30 minutes break. If the employee works 10 hours or more but less than 13 hours shift, he/she would be entitled to two breaks of 30 minutes each. If the employer also provides coffee break, in addition to the eating break of 30 minutes, the coffee break is considered as part of paid time off and must be paid at least the minimum wage for that time. Even though the employer must give eating break under the Act, this right is suspended under exceptional circumstances as explained above.

The Act requires that the employee must be given at least continuous 11 hours off work even if the employee and the employer have agreed to exceed daily 8 hours or weekly 48 hours and have received Ministry’s approval to their written agreement. This rule does not apply to employees who are on call. Any agreement between the parties, which violates this requirement, is not valid. In addition, the employee must be given at least continuous 24 hours off work in each week or 48 continuous hours off work in a period of two weeks. Again, this requirement cannot be changed by written agreement between the parties.

There is no requirement under the Act for the employer to provide transportation if the employee works late at night unless the contract of employment calls for it. The Act also does not place any restriction on the employer to schedule whatever shift it wishes to schedule for the employee. Under the Act, the employer is not required to pay premium rate if the employee works on Sunday or late night shift. However, the employee can negotiate with the employer any additional compensation if he/she is required to work Sunday or late night shift.

If an employee works more than 44 hours/week, he/she is entitled to overtime pay which is 1.5 times hourly rate. However, certain jobs are exempted for overtime pay and certain jobs may require longer hours to qualify for an overtime pay and if the employee works in job which combines different activities, in such situations, the overtime pay would depend on the amount of time he/she spends in each activity. If the employee works more than 50% of his time in an activity that requires overtime pay after 44 hours, he/she would be entitled to overtime pay at the rate of 1.5 times hourly rate for all hours worked above 44 hours. Take for example, an employee who drives taxi as well as works as a dispatcher in the office. He is entitled to overtime pay for the work he does as a dispatcher but is exempted for overtime pay as a taxi driver. Let us suppose, he works 26 hours as a dispatcher and 24 hours as a taxi driver, in all, he works 50 hours. Since he works more hours as a dispatcher than as a taxi driver, he is entitled to overtime pay for all hours worked over 44. In this case, he is entitled to 6 hours of overtime pay. If he were paid $10.00/hour, he would be entitled to $440.00 for 44 hours plus $90.00 overtime pay for a total of $530.00. On the other hand, if he worked 26 hours as a taxi driver and 24 as a dispatcher, he would be exempted from overtime pay and he would be paid for 50 hours at the rate of $10.00/hour for a total of $500.00.

The employer and the employee can agree in writing to average hours over a specified period of two or more weeks. What this means is if the agreement calls for averaging over two weeks, the hours worked over two weeks are divided by two and if the average is over 44 hours, the employee then would be entitled to overtime pay even if he has worked more than 44 hours in one week. Let us consider an example, Joe has signed an agreement with the employer to average his hours of work on two weeks basis, he works 50 hours in the first week and 38 hours in the second week, the total hours he worked were 88 hours over two weeks and the average hours per week then would be 44, he is therefore, not entitled to overtime pay even though he worked 50 hours in the first week, since the average does not exceed 44 hours. Like wise, if the agreement is to average hours of work over three weeks or four weeks, the total hours worked over three weeks or four weeks would be divided by three or four to get the average and if this average is over 44 hours, only then he would be entitled to overtime pay.

The averaging period cannot overlap one another and must follow one after the other without gaps or breaks. The agreement must have a starting date and ending date and cannot be cancelled once agreed to unless both parties agree to cancel it. In addition to having an agreement in writing, the employer is also required to seek approval from the Ministry without which the agreement is not valid.

The employer and the employee can agree in writing to have time off instead of pay, however, this must be at the rate of 1.5 times the overtime hours. If the employment ends before the time is taken, the employer must pay for the outstanding time at the next payday or within seven days whichever is later.

The calculation of overtime pay depends on if there is averaging agreement or if there is a public holiday that week or if he/she is paid a salary or hourly or on a piece work rate or commission.

Hourly

Jim’s hourly rate is $15.00 and he worked 50 hours. Since he worked 6 hours overtime, his total wages are calculated as follows:

Wages for 44 hours at $15.00/hour = $660.00
Overtime Pay for 6 hours at $22.50/hour (15.00X1.5=22.50) = $135.00
Total = $795.00

Salary

Rita’s salary is $500.00/week. She worked 55 hours. She worked 11 hours overtime. Rita’s wages for this week are:

Since Rita is paid a fixed salary, we will calculate her hourly over 44 hours/week.

Hourly rate for 44 hours/week $500.00/44 = 11.36
Overtime Pay for 11 hours at $17.04 (11.36X1.5=17.04) 11X17.04= 187.44
Total $687.44

Fluctuating Salary

Larry is hired on the understanding that he would be paid a salary of $400.00 for a normal 40 hours/week. If he works more or less than 40 hours/week, his salary is adjusted accordingly. Suppose he worked this week 50 hours. His pay would be calculated as follows:

Larry’s hourly rate $400.00/40= 10.00
Regular Pay for up to 44 hours (44X10) $440.00
Overtime Pay for 6 hours at (10X1.5=15) $90.00
Total $530.00
 

Piece Work

Linda is paid on a piecework basis while Shanta is paid straight commission. They both worked 48 hours this week and were paid $480.00.

Hourly rate $480/44= 10.91
Overtime pay for 4 hours at (10.91X1.5= 16.37) $65.48
Total $545.48

This information is only provided to guide you about your entitlements under the Employment Standards Act, 2000 and should not be considered as a legal advice.
This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.

If you have any questions regarding your employment, please contact the writer by e-mail at esaconsulting@hotmail.com If you don’t have access to e-mail; you can fax your question at (905) 331-1805.

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