Working longer hours this year? What to know about overtime pay in Ontario and B.C.

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An Ontario class-action lawsuit launched against Starbucks Canada seeks $50 million in damages for store managers who claim they were excluded from overtime pay due to inappropriate company policy.

The lawsuit has sparked questions about overtime pay in Canada, such as whether managers are excluded from overtime pay.

Like many aspects of employment law in Canada, overtime pay is often misunderstood by employees and employers alike. Here are the answers to some commonly asked questions about overtime pay.

When do I qualify for overtime pay?

Overtime pay for employees in Ontario kicks in once they work more than 44 hours per week. For workers in B.C., the threshold is met once they clock more than eight hours per day. Employees in both provinces are entitled to time and a half for overtime pay.

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Federally regulated employees in Canada qualify once they work more than eight hours per day or 40 hours per week. Their compensation is either time and a half or paid time off at that rate.

Can I get overtime pay if I didn’t get permission to work overtime from my employer first?

Yes. While the company can discipline you if you didn’t follow its procedure for requesting overtime hours, your employer must still pay you if you’ve worked the hours.

Can I be disciplined or fired by my employer for enforcing my right to overtime pay?

No. If an employer terminates your employment or disciplines you for enforcing your right to overtime pay, this is considered a reprisal under the Employment Standards Act.

My team can not only help you obtain a fair and full severance package based on your age, years of service and position at the company, we can also seek damages from your employer.

READ MORE: Laid off in a bad economy? You might be owed more severance, not less

Can I get overtime pay if I’m a salaried employee?

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Yes. Regardless of whether your pay is hourly or salaried, you are entitled to overtime pay.

Some professions are exempt from earning overtime pay. In Ontario, those who do not have a right to earn overtime include lawyers, taxi drivers, massage therapists and architects. B.C. exemptions include police officers, fishing and hunting guides, and residential care workers. Neither province extends overtime rights to firefighters or teachers.

My company considers me a manager or supervisor. Am I entitled to overtime pay?

Most non-managerial and non-supervisorial employees are entitled to extra pay outside of their regular work hours. True managers and supervisors, however, are exempt from this requirement as long as they do not work in other capacities on a regular basis.

Even though the Starbucks Canada employees had store manager titles, the lawsuit maintains that they do, in fact, have a right to claim overtime.

That’s because managers and supervisors are entitled to overtime pay if they regularly perform tasks that fall outside of a manager or supervisor’s duties. Those tasks include making food and drinks, operating the till, working the drive-through window, cleaning, or stocking the shelves.

Individuals who hire, supervise and fire employees, but also regularly perform the same work as their subordinates, will likely not be deemed managers by the law. They would be owed for all unpaid overtime as far back as two years and for any extra hours worked outside of a standard work day going forward.

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READ MORE: New Uber contract for Canadian drivers takes aim at class-action lawsuits: lawyer

Tips and tricks for enforcing your right to overtime pay

Be honest with your employer about how much time you need to meet deadlines. If you know that a certain project or task will mean you have to work extra hours, speak with your employer about it first and work out an agreement about overtime pay.

READ MORE: What you need to know before you sign a contract — even if your employer asks you to

If you have a disagreement with your employer about overtime pay, make sure you clearly state your position to them in a letter or email.

Regardless of whether your employer agreed to pay you overtime, keep records on a spreadsheet of all hours worked and describe the tasks you completed outside of your normal hours.

Is your employer forcing you to work extra hours without overtime pay? Have you been fired because you tried to enforce your employment rights?

Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario or British Columbia. Get the advice you need — and the compensation you deserve.

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Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. 

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