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The Question

As a manager, I am told that if I work overtime, I can take time off in lieu. Straight time, which is fine. However, I am told I cannot be paid out. That it is “the law.” I often work longer hours because of the skills associated with my designation. I like my clients and my team members, so I happily support them beyond the usual 9-to-5 hours. But I feel slightly exploited just because they say I am a “manager.” I cannot safely approach HR because HR and my director have a very friendly relationship.

The First Answer

Greg Conner, vice-president, Human Resources, BC Transit, Vancouver

Let us start with the fact that simply calling someone a manager doesn’t exempt them from overtime. The true test of whether one is a manager or not is the nature of the work functions and the level of control and authority over a group of employees. Assuming you meet that test, under Employment Standards, you are exempt from overtime provisions.

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As far as not paying you out, I would get clarity from HR by approaching them as seeking to understand the why, and they, in turn, should be forthcoming. HR professionals have a code of conduct and the friendship with management doesn’t make them exempt from their professional responsibilities to you as an employee.

Having said that, from my perspective they are not treating you unfairly. There is no “law” saying you can’t pay out a manager for hours worked in excess of normal work. However, in fact, many, if not most, organizations don’t even compensate their managers with time off in lieu, let alone give them cash compensation. Having a great team and good clients is also a bonus we would all love.

Finally, while managers usually work longer hours than their employees, they are also usually afforded more flexibility during the workday and I would urge you to see the upside of both the workplace flexibility and the additional time off in lieu. I know I do.

The Second Answer

Ryan Edmonds, principal lawyer, Ryan Edmonds Workplace Counsel, Toronto

Your question seems to be whether as a “manager” and on a salary, you are entitled to overtime pay. Contrary to popular belief, overtime eligibility typically has nothing to do with whether you are paid a salary; rather, it turns on the nature of your job. While exemptions differ across provinces, most legislation provides that true “managers” are not entitled to pay or time off in lieu for overtime.

But what is a “manager”? Courts and labour boards apply these exemptions narrowly, so more jobs are eligible for overtime than many employers will admit. The legal test differs between provinces, but relevant questions include: Can I hire, fire or discipline? Do I give performance appraisals? Do I have signing or budgetary authority? Do I spend more time on managerial duties than not?

If you are truly a “manager” or fall into another statutory exemption, then your employer’s overtime policies will govern.

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If not, employment standards legislation rules. In Ontario, for example, overtime must be paid out by default; time off in lieu can be given only if the employee provides written consent.

Nonexempt employees must receive premium pay (usually 1.5 times their regular wages) or time off in lieu for hours worked beyond the weekly statutory threshold (usually 44 or 48 hours).

To help determine whether you are truly overtime-exempt, you should contact your local Ministry of Labour or consult with an employment lawyer.

Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com

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