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Forgotten Employee Rights: Overtime Pay for the Salaried Employee

Whitten and Lublin | Dec 07, 2016

employee rights to overtime payIt’s hard to understand your employee rights. Many salaried employees believe they are not entitled to overtime pay.  This is a surprisingly common myth. There are a large number of salaried professionals who receive an annual salary, who work extremely long hours and never receive a dollar in overtime pay.   Many employees may leave a lot of money on the table each year without ever realizing it.

The reality is that unless you fall into an exempt occupational category, you are entitled to overtime pay.   Most salaried employees are entitled to overtime pay.  Federal and provincial employment standards legislation mandate that employers must provide overtime pay, regardless of whether you earn commissions, a base salary or an hourly rate. The manner in which you are paid has nothing to do with your eligibility for overtime pay.  Overtime pay for salaried employees is generally calculated by converting your annual salary to an hourly rate and overtime is paid at 1 ½ times the regular hourly rate for each overtime hour worked.

Employees who exercise managerial or supervisory functions or belong to certain exempt occupational groups are not entitled to statutory overtime pay.  That said, employees who bear the title of ‘manager’ or ‘director’, but who do not exercise supervisory or managerial functions, are still entitled to overtime pay.  It is not a valid justification for an employer to rely on a job title alone to avoid its overtime obligations.

Being entitled to overtime pay is one thing, but the practical hurdle is often proving the overtime hours. Most salaried employees do not have a system of tracking their hours of work, so overtime hours are often overlooked or difficult to prove after the fact.  The reality is, that even if you are a salaried employee, your employer bears the onus of tracking your overtime hours.  Even though it is the employer’s responsibility, you should be doing the same. Maintaining a daily time sheet on your own can validate the actual number of overtime hours you work in support of your overtime entitlement.

Overtime rules vary slightly by province. In Ontario, employees are entitled to overtime pay at time and a half, for hours worked in excess of 44 hours in a week.   In some provinces, employees are entitled to daily and weekly overtime.    You should check with the employment standards office in the province where you work to determine the overtime rules that apply to you.  Some employers may have overtime policies that are more generous than employment standards.  You should also review your employer’s overtime policy, if one exists, to determine if you may have additional rights or benefits under the policy.

 

Author: Jonquille Pak, Employment Lawyer