By Daniel Sorensen and Lawrence Smith
Do feel you are putting in too many hours, and not being paid appropriately? You should know your overtime rights to ensure that you are not being taken advantage of.
What overtime laws apply to my job?
The Employment Standards Act applies to most workplaces in British Columbia and sets out minimum requirements for overtime.
Some workplaces fall under federal jurisdiction. These workplaces can include those dealing with aviation, inter-provincial trucking, railways and first nations. For workplaces that fall under federal jurisdiction, the Canada Labour Code will usually set out the minimum requirements for overtime. These minimum requirements are similar to, but not the same as those under British Columbia’s Employment Standards Act.
You should also be aware that some industries have specific overtime rules that apply to them. For example, unique overtime rules often apply to industries related to farming, trucking, shipping, railways, technology, petroleum and silviculture.
If you are a member of a union, then the requirements for overtime will usually be set out in your collective agreement.
What does the Employment Standards Act require?
Overtime entitlements under the Employment Standards Act are determined by reference to the number of hours worked in a day or the number of hours worked in a week.
Generally speaking, overtime is not payable on the first eight hours you work in a day.
Once you have worked eight hours in a day, you are entitled to be paid time-and-a-half for up to the next four hours that you work. If you work more than 12 hours in a day, then you are entitled to be paid double-time for each hour you work over 12 hours. This is the case even if you have worked less than forty hours that week.
Once you have worked more than forty hours in a week, you are also entitled to overtime pay at time-and-a-half. This is true even if you have not worked more than eight hours on any given day. So if you worked seven hours a day for six days during a week, you would then have worked forty-two hours during that week. You would then be entitled to two hours of overtime, paid at time-and-a-half.
You should be aware that you cannot contract out of the overtime provisions of the Employment Standards Act. A contract that does not meet the minimums of the Employment Standards Act is unenforceable.
Rather than paying straight overtime, there are a number of alternative options that employees and employers can agree upon.
One such option is averaging agreements. Under averaging agreements, employees’ hours per week is averaged out over a period up to four weeks.
Alternatively, at an employee’s request, a time bank can be established. With a time bank, overtime hours are credited to the time bank instead of being paid to the employee for the pay period where the overtime takes place. An employee can then use this time bank to take paid time off. When the time bank is closed, then the outstanding balance in the time bank must be paid to the employee.
The overtime provisions in the Employment Standards Act apply to most employees, but some employees, such as managers, are excluded from the overtime entitlements in the Employment Standards Act.
If you feel that your employer has not complied with the Employment Standards Act, then you can file a complaint to the Employment Standards Branch. You should note that the Employment Standards Branch limits the time that you have to file a complaint, and the amount of time for which you can claim overtime. As such, it is important that you not dawdle in filing a complaint.
If you have questions regarding the payment of overtime or the filing of an employment standards complaint, contact us today for a consultation.