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The question

When I work overtime, I should be paid time-and-a-half. But my boss gives us lieu hours off instead — one-and-a-half hours for every hour of overtime worked. I would rather just get time-and-a-half pay because I need the money. Is it legal for my boss to give lieu time instead?

The first answer

Jonquille Pak, lawyer and founder, JPAK Employment Lawyers, Toronto

In Ontario, under the Ontario Employment Standards Act, provincially regulated employers are required to provide overtime pay at the rate of 1.5 times the employee’s hourly rate for all overtime hours worked in excess of 44 hours per week.

An employer cannot force an employee to receive lieu time as a substitute for overtime pay. Paid time off in lieu of overtime pay is only permissible if the employee provides their written agreement to receive paid lieu time instead of overtime pay. If you have not provided your written agreement to receive paid time off in lieu of overtime pay, then it is not legal for your boss to provide you with paid lieu time instead.

Generally, most provinces in Canada require an employee’s written request or written agreement to bank overtime hours, before an employer can provide paid time off in lieu. For instance, in British Columbia, an employer cannot provide paid time off in lieu unless the employee submits a written request to bank their overtime hours instead of receiving the overtime pay. In other words, the default rule in most provinces is overtime pay, not paid time off.

If you are not being provided with overtime pay as required under applicable employment standards legislation, you can file a complaint with your provincial ministry of labour. Note that your employer cannot retaliate against you for requesting that they act in compliance with statutory overtime pay obligations.

The second answer

Kathleen O’Brien, associate, Carbert Waite LLP, Calgary

Most employees, full-time or part-time, are entitled to overtime pay. Employment standards legislation will often identify employees who are excluded from overtime entitlements, such as managers or professionals. There are also industries that are subject to variations in overtime entitlements, such as firefighting services or trucking.

If you do not fall under these exceptions, your employer must compensate you for overtime hours worked. How you are compensated will depend on the applicable employment standards legislation and whether you have entered into an overtime agreement with your employer.

In most provinces and territories, the employment standards legislation permits employers to provide employees with time in lieu rather than overtime pay, but only if there is an overtime agreement. In Alberta, if you have not entered into an overtime agreement, your employer must pay overtime pay for overtime hours at a rate that is at least 1.5 times your regular wage.

Your first step would be to review your employment contract and any other agreements that you signed, as well as relevant employment standards legislation. As a general starting point, if you have not signed an overtime agreement, remind your employer of their obligations and request that you be paid for all overtime worked. If you have signed an overtime agreement, your options will be set out in that agreement.

If you are unable to resolve the issue with your employer, you may wish to consider reaching out to your provincial or territorial employment standards body to discuss options moving forward. If you have already taken time in lieu, you will likely not be able to recover overtime pay for the same work.

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