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The Question

I have been working for my employer for just over a year and my manager has always demanded that I work a ton of overtime hours, anywhere from 10 to 30 hours on top of my usual 40 hours a week. My manager insists that he won’t pay for the overtime hours and that I should be expected to go above and beyond if I want to have a good reputation with the company and get promoted. I am on an annual salary and I am not in a union. I don’t mind working the extra hours, but I want to get paid for it. What can I do?

The First Answer

Alia Besharat, employment lawyer, Monkhouse Law Employment Lawyers, Toronto

Employees are often unaware of their rights when it comes to working overtime hours. In Ontario, and according to the Employment Standards Act, if a non-managerial employee works more than 44 hours in a single week, then they must be paid overtime, regardless of whether they are paid a salary or hourly. In other words, anything worked over and above the 44 hours in one week is considered overtime and is calculated as time and a half or 1.5 times the employee’s regular rate of pay. The calculation of overtime pay for salaried employees is more complicated because a calculation must be made as to the hourly rate of pay, even though those employees are not paid on an hourly basis.

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However, there is an exemption to this rule which states that overtime does not apply to those in a managerial or supervisory role. Employees should check the list of professions that are exempt from overtime. Some exclusions include lawyers, accountants, IT professionals and engineers.

The requirement to pay overtime is an absolute right, subject to the exceptions noted. If an employee qualifies and is entitled, the employer must pay overtime regardless of whether their employer authorized the work. They are entitled to it even if their employment agreement says they will not be paid for overtime, aside from exempted professions.

If you feel you may be entitled to overtime, speak with an employment lawyer for professional legal advice.

The Second Answer

Jason Edwards, Associate, Pink Larkin, Halifax

The first question is whether you are entitled to overtime. The employment standards legislation in your province will set out who is entitled to overtime, at what rate and when. For example, in Ontario, the Employment Standards Act requires employers to pay time-and-a-half for hours worked in excess of 44 in a week. This applies to hourly and salaried employees. There are some exceptions for certain occupations such as engineers, pharmacists and IT professionals.

The more difficult question is what to do. You’re in a tough spot. You want to maintain a good relationship with your employer but you don’t want to be donating your time. The vast majority of employment standards complaints are made by individuals no longer employed by the employer they are complaining about, for obvious reasons.

I suggest you try to tackle the issue as a group. Check in with your co-workers to see if they share your views. If they do, you can approach the employer as a collective and demand that the employer pay you appropriately. If that doesn’t work, the group of employees could all file employment standards complaints together, so no one is singled out.

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If your co-workers are so inclined, you should consider starting a union at the workplace. That way, instead of hoping your employer follows the rules, you can negotiate what the rules are and force the employer to follow them. If there is no appetite among your co-workers to form a union, you should start looking for a new job. It sounds like this employer does not appreciate your contribution and will continue taking advantage of your hard work and dedication.

Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.

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