Understanding managers’ and supervisors’ right to overtime ⋆ LegalMattersCanada

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Many employees are excluded from statutory overtime

However, many employees are excluded from statutory overtime pay, including lawyers, accountants, IT professionals and engineers.

“There are also a number of labour and farm exceptions, such as mushroom growers,” says Low. “And, of course, there is that well-known exception being managers and supervisors. But having that title is not the be-all and end-all with respect to entitlement.”

There is a multi-part test, looking not only at the employee’s role but how the work they are doing is defined, she says.

“A manager or supervisor may be performing other tasks and duties along with their managerial or supervisory roles,” Low says. “Then the question becomes whether those tasks being performed are done so on an irregular or exceptional basis.”

There is also “some flexibility built into the ESA” allowing employees to have multiple jobs where they do two or three different types of work, she says,

“Some of that work may specifically be exempt from overtime but other parts may be eligible,” Low explains.

Low points to two decisions that examine the issue. In Glendale Golf and Country Club Limited v. Sanago, the Ontario Labour Relations Board (OLRB) was told Massimo Sanago was employed as head chef in Hamilton.

His job “was to supervise and administer all phases of kitchen operations including food selection and purchase as well as the supervision of subordinates and coordination of the kitchen service with other departments,” the board heard.

Assumed duties of other workers

However, he also worked overtime when assuming the duties of kitchen workers during staff shortages. Based on his records, the man said he spent more than 55 per cent of his time doing non-supervisory duties.

The OLRB explained that ESA overtime exemption can apply even if the manager or supervisor sometimes performs non-managerial or non-supervisory duties.

However, in its ruling, the board found that “the significant quits/firings of the kitchen staff, which occurred at the commencement of Sanago’s employment, placed the Executive Chef in such a position that he had no alternative but to regularly perform the day-to-day duties of non-supervisory/non-managerial employees in order to keep the kitchen operational.”

Those duties could not “be characterized as ‘irregular,’” the OLRB ruled. The man was awarded $9,443 in overtime and associated vacation pay.

In Tsakiris v. Deloitte & Touche LLP, Ontario Superior Court stated the test to establish if someone is entitled to overtime is a two-step inquiry:

there must be a determination of whether the “character” of the employment is managerial or supervisory;
if the answer to the first question is yes, there must be a determination of whether the individual performs non-managerial or non-supervisory tasks, and, if yes, whether these tasks are done on an irregular or exceptional basis.

‘Did not change the character of his overall employment’

“In this case, the court found despite the fact that the plaintiff was performing non-managerial duties such as drafting memos and performing secretarial work, on the balance of probabilities those duties did not change the character of his overall employment,” says Low, who was not involved in the case but comments generally. “Therefore, he was not entitled to overtime.”

She says if employees have questions about whether they are entitled to overtime they should seek clarification.

“If someone has asked their employers if they can claim overtime and the answer is no, they may not necessarily go any further in evaluating whether or not that is in fact true,” Low says. “But it can be worth exploring because these cases can be relatively lucrative if someone has been doing unpaid overtime for a period of time.”

Those who are contemplating pursuing an overtime claim should be documenting their hours, she says, adding this is important when quantifying any potential damages.

The employee should put their questions to employers in writing and keep records, Low advises.

‘Proof of what was agreed to’

“If it is in writing, such as an email, there is a proof of what was agreed to,” she explains. “With a conversation, people tend to remember the part of the agreement they like.”

It is important to remember that time is of the essence when filing a lawsuit in Ontario. Low says a person must commence an action within two years of when they first knew a claim could be made. However, it may be possible to “push out timelines for Employment Standards Act complaints where the employer has effectively provided the employee with false information,” she says.

Low says workers should not be afraid to ask questions. Under s.74(1) of the ESA, “no employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee” who is seeking to uphold their workplace rights.

“The reprisal provision exists for a reason because quite clearly it does happen where people make inquiries about their ESA entitlements and then find themselves demoted or terminated a short time later,” she says.

Overtime entitlement can be a murky issue and determining what is considered irregular and non-exceptional duties “may require a deep dive into eligibility requirements,” says Low.

“Your first move should be to have a conversation with an employment lawyer to determine your rights,” she says. “Receiving a third-party assessment about whether the work you are doing is subject to the exemption or whether there may legitimately be a claim in accordance with the ESA can be invaluable.”