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THE QUESTION

I have been a hotel maintenance manager for four years and we are not unionized. I am on call 24/7, 365 with no compensation other than having my phone bill paid. After my shift is over, I usually get three to five calls every evening. Some nights it’s as high as 10 to15 calls. I just took my first vacation in two years. I was called in seven times on my nine days off and answered 45+ calls. I am sick of the calls 24/7. It is not in my employment contract.

The way I read the labour law is that managers are not entitled to on-call or overtime pay as it is expected of their role. When I called the labour board they said that the only way this is overridden and I can be compensated (payable at a rate of three hours per day for being on call) is if the manager is doing the work of line-level employees. I have done my laid-off employees’ jobs for 16 months now, with again no compensation.

Am I entitled to the three hours of on-call pay for at least the 16 months of COVID, if not the entire four years I’ve been working here?

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THE FIRST ANSWER

Balraj K. Dosanjh, employment lawyer, Cavalluzzo LLP, Toronto

Although the minimum employment standards rules vary across Canada, not all employees are entitled to overtime pay by law. In particular, you are correct in understanding that the rules respecting overtime pay are not generally applicable to management employees. In Ontario for example, the Employment Standards Act (the “ESA”) exempts managers from qualifying for overtime pay if they are performing managerial duties and nonmanagerial duties are performed irregularly. However, if you are only a “manager” by title but the nature of your work is not truly managerial, then you may file a complaint under the applicable employment legislation for the missed overtime pay. You may also pursue a claim in court depending on the structure of the applicable employment legislation and the terms of your employment contract.

Whether your work is truly managerial is very fact-specific and depends on how your particular workplace is organized and the nature of your work duties. In general, your work should involve some degree of independence and authority to make decisions such as determining staffing levels or hiring and firing employees. Based on the information provided, it sounds like you are a true “manager” but I recommend you consult an employment lawyer to review your specific circumstances.

The ESA also provides that if an employee who normally works at least three hours a day is called in to work and works less than three hours, the employee must be paid for at least three hours. However, this rule may not apply if you routinely work less than three hours outside your regularly scheduled shifts. For your circumstances, if your “on-call” shifts are routinely less than three hours, then this three-hour rule is unlikely to apply to your situation.

Finally, whether you pursue a claim under employment legislation or in court, any recovery you are entitled to will be limited by the time limit to file the claim. In Ontario, you have two years to file a claim under the ESA or to make a claim in court.

THE SECOND ANSWER

Sarah Coderre, partner, Bow River Law LLP, Calgary

While you are not entitled to receive overtime pay as a management employee under employment standards legislation, you are entitled to be treated with good faith throughout your employment. Being treated with good faith means, among other things, being treated reasonably and fairly. Being on-call 24/7 with no one to pass calls off to and performing another employee’s duties indefinitely without extra compensation is not reasonable or fair.

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If you have not spoken with your boss about your working conditions, you should speak with them as a first step. While you are not entitled to receive overtime pay as a manager, you are entitled to receive fair and proper compensation for your work. Many companies provide management employees with periodic raises, bonuses and other incentives in recognition of the additional hours they have to work. The duty of good faith requires that your employer compensate you for your extra work.

You are likely entitled to a raise and a bonus for your extra work at a minimum. In addition, you should have an honest conversation with your manager about how being on-call 24/7 is affecting you. Come up with a plan for how another employee could be trained to handle calls a few nights a week to give you necessary downtime. Working yourself into the ground will affect your mental health and ultimately cost the company more in lost productivity if you have to go on stress leave. Providing you with fair compensation and a sustainable workload is a win-win.

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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