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The Question

I sometimes work 15 to 20 hours over and above the regular 80-hour pay period, and get no overtime pay. However, if I work less than 80 hours, human resources deducts from my banked hours to make up for it. I was told I was ineligible for overtime pay so why am I being “charged” when I’m under, but not paid when I’m over?

The First Answer

Nabila Khan, associate lawyer, Ryan Edmonds Workplace Counsel, Toronto: There are two issues at play: the first is overtime eligibility and the second is a deduction from wages.

Employment standards legislation in most Canadian provinces have occupational exemptions for overtime pay or time off in lieu. In Ontario, for example, employees in managerial positions and certain professionals (e.g. IT, engineering, accounting, law) are not entitled to any form of overtime compensation regardless of how many hours they work.

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If you are eligible for overtime, employment standards legislation will set the rules for the rate of pay and, if applicable, time off in lieu (“banked hours”).

In Ontario and Alberta, the overtime rate of 1.5 times applies to all hours worked in excess of 44 hours a week. In Manitoba, the threshold is 40 hours a week, while in Nova Scotia, overtime kicks in after 48 hours of work. Further, in Ontario, overtime must be paid out by default, and time off in lieu can only be given if the employee provides written consent. Even then, the banked hours must be used within a specified period of time.

Employment standards legislation also limits an employer’s ability to make deductions from wages without an employee’s consent, which would include banked hours. These rules vary between provinces, so you would want to contact an employment lawyer or your local Ministry of Labour regarding your situation.

If you are not eligible for overtime because of an occupational exemption, then your employer’s policies will govern. Unlike for non-exempt employees, these rules do not need to follow employment standards legislation and could, in theory, allow for deductions from banked hours.

The Second Answer

Joel Fairbrother, associate, Taylor Janis Workplace Law, Calgary: Legal principles differ between provinces. In Alberta, where I practise, most employees get overtime at 1.5 times regular wages for hours exceeding eight hours a day or 44 hours a week, whichever is more. If an employee is management (or some professions such as lawyers, accountants etc.), the employer is not normally forced to pay the person overtime and these people are usually on a set salary. Normal employee overtime rules can be modified by overtime agreements and averaging agreements.

Overtime agreements are created when an employer and employee(s) agree that the employee can work more than eight hours a day or 44 hours a week in exchange for time off at their regular pay rate.

Averaging agreements are created when an employer and employee(s) agree that the employer should be able to average an employee’s daily and weekly work hours over a number of weeks to calculate overtime.

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These require that the employer schedule the hours in advance. If the scheduled hours exceed 44 a week, the employee gets overtime; if an employee works more than scheduled hours, they may also get overtime.

These types of agreements can be entered into by a group of employees prior to a new employee starting and still be binding on the new employee.

If you are management (or certain professions), most likely there is no issue because you are probably not entitled to overtime. If you are not management or one of those professions, the employer is likely required to comply with the exceptions above. If they are not doing that, you likely have a claim for overtime.

Keep in mind that these are all general rules that apply to most employees, but there are exceptions.

Have a question for our experts? Send an email to NineToFive@globeandmail.com

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