Everything To Know About Overtime Pay In Ontario

Overtime pay Ontario

Overtime Hours/Pay Ontario

If an employee works more than 44 hours in a single week, overtime kicks in, and he or she must be paid overtime pay. 

The right to overtime pay in Ontario is enshrined in section 22 of the Ontario Employment Standards Act [“ESA”] (our ESA FAQ here), which says that an employee earns overtime pay after they have worked 44 hours or more in a single week. 

Section 22 of the Employment Standards Act precisely says this:

Overtime threshold

22 (1) Subject to subsection (1.1), an employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work over 44 hours in each workweek or, if another threshold is prescribed, that prescribed threshold. 

https://www.ontario.ca/laws/statute/00e41#BK41

Important Note: There are a few, rare jobs in Ontario that trigger special rules for overtime pay after 44 hours. See the list here

How Much Is Overtime Pay?

Overtime pay in Ontario is 1½ times an employee’ regular rate of pay. This “time and half” rate applies to all work above and beyond 44 hours in any given workweek. 

Some employment contracts can have more than “time and a half” for overtime pay, but that is rare and not required by law in Ontario.  

How To Calculate Overtime Pay In Ontario

Overtime Pay for Hourly Employees 

Overtime pay in Ontario pay is 1½ times the hourly employee’s regular rate of pay. For example, if an employee who has a regular rate of $20.00 works more than 44 hours in a week, each hour after 44 must be paid an overtime rate of $30.00 an hour ($20× 1.5 = $30.00).

Overtime Pay for Salary Employees

Just like hourly employees, after 44 hours, a salaried employee is entitled to overtime pay in Ontario, which is 1½ times the employee’s regular rate of pay. 

There is no exemption to overtime for salaried employees. 

The calculation of overtime pay for salaried employees is more complicated than hourly workers because you have to determine what the salaried employee’s hourly rate is even though they do not make an hourly rate. 

For example, let’s say an employee earns $100,000 per year. That means they make $1,923.07 per week ($100,000 / 52 = $1,923.07). This means they make $43.70 per hour ($1,923.07 / 44 hours = $43.70). Next, the salaried employee’s overtime pay rate is calculated as $43.70 x 1.5, which equals $65.55. Accordingly, every hour the employee works per week past 44 hours must be paid at the overtime pay rate of $65.55. 

To make the calculation of Overtime pay easier, you can use the Government of Ontario’s Overtime Pay Calculator.

Who Is Entitled To Overtime? 

The requirement to pay Overtime pay applies for all employees in Ontario except those particular jobs that are exempted from the Employment Standard’s Act rule regarding overtime pay. 

Who is Exempt from Overtime Pay?

Primarily, managers and supervisors are exempt from overtime pay. 

Even if managers and supervisors perform a few kinds of tasks that are not managerial or supervisory, they are not entitled to get overtime pay if these tasks are performed only on an irregular or exceptional basis.

When is someone truly a manager or supervisor? Some employers misclassify their staff as managers and supervisors to avoid paying overtime. Therefore, there is a legal test to determine if someone is genuinely a manager or supervisor. Read about that test here. If someone has been misclassified as a manager or supervisor, then they would be entitled to all back-overtime-pay. 

Overtime Pay Ontario Exemptions

In addition to managers and supervisors, various other occupations are exempt from Ontario in Ontario. 

The biggest category of workers exempt from overtime in Ontario is the information technology (IT) professional. Moreover, most professions, including doctors, lawyers, engineers and accountants are exempt from overtime in Ontario.

A full list of workers exempt from overtime in Ontario is enshrined in sections 2 and 8 of Regulation 285/01 of the ESA, which is located here and here respectively. 

Are construction workers entitled to overtime? Yes

Does an Employer Have To Pay Overtime?

The requirement to pay Overtime in Ontario is absolute. If overtime applies to an employee’s hours, then the employer has no defence, and the employer must pay overtime. For example, it is unlawful for an employer to raise a defence to pay overtime because:

  1. The employer did not authorize or pre-approve the employee to work overtime
  2. The employee agreed to a built-in overtime rate
  3. The employee contracted out of their overtime pay
  4. The employee performed work for different but related employers
  5. The Employer/employee failed to document all overtime

Simply put, if an employee works more than 44 hours in a week, he or she is per se entitled to overtime pay — there is no defense — and the employer must pay overtime pay. The only caveat is if there is an exemption, as described above.

Banking Overtime Hours Ontario

Employees can “bank” overtime pay if they agree in writing with the employer.

Banking overtime means the employee is compensated for some or all overtime hours by receiving one and one-half hours of paid time off work for each hour worked in excess of 44 instead of receiving overtime pay if the following criteria are met:

  1. The employee and the employer agree, in writing to compensate the employee with paid time off at a rate of 1.5 hours off work for every hour of overtime worked, rather than pay the employee overtime pay; and
  2. The paid time off work is taken within three months of the workweek in which the overtime was earned or, with the employee’s written agreement within 12 months of that workweek.

If the employee’s employment ends before the banked time (i.e. lieu time) earned is taken, the employee’s banked entitlement automatically converts into an entitlement to overtime pay.

Can An Employer Force You To Work Overtime In Ontario?

Yes, an employer can force an employee to work overtime (i.e. more than 44 hours per week) up to a specified maximum. The maximum hours allowed to work in Ontario are 13 hours per day and 48 hours per week, beyond which time an employer cannot force an employee to work. 

However, an employee and employer can agree in writing to exceed the maximum amount of hours per day/week in Ontario.

To that end, any employee can refuse to work more than 13 hours per day and 48 hours per week, but he or she cannot refuse to work less than 13 hours per day and 48 hours per week. That is not to say that he or she cannot quit their job if they don’t wont to work so many hours.

Nonetheless, keep in mind that as soon as the employee goes above 44 hours in a week, he or she is entitled to overtime pay.

Special Note: An employee may have a contract that says they work a certain amount of hours per week, and it may be a breach of the contract to force the employee to work more than that.  

Overtime Lawyers: If you are an employee who believes you are entitled to unpaid overtime in Ontario, contact us today. We regularly act for individuals seeking unpaid overtime in court or through the Ministry of Labour. In addition, lawyers at our firm, Monkhouse Law, have sued major corporations in “class action” lawsuits on behalf of thousands of employees who are owed unpaid wages in Ontario. If you believe you may be a part of a large group of employees who are owed overtime pay in Ontario, contact us.