Last updated Jan, 2018.
After the standard exchange of “hello”s and “how are you”s when meeting someone for the first time, it won’t be too long until an awkward lull in the conversation prompts someone to ask “so… what do you do?” This isn’t surprising given that work is a such a fundamental part of human existence; it forms a large part of our identity, it can give our lives meaning, and it takes up a significant portion of our time. But how much time should you be working each day? While that can be a personal question, it is also also one that is the subject matter of legal restrictions and protections.
Governing this is one of the many key statutes an employer in Ontario should be aware of: the Ontario Employment Standards Act (ESA). Among other equally important aspects of the workplace such as minimum wage and matters relating to termination, it lays out standards with respect to an employee’s hours of work, breaks, and overtime – all of which we’ll delve into below.
Hours of Work vs. Hours off Work
The ESA prescribes a maximum work-day of 8 hours, and maximum work-week of 48 hours (ESA, s. 17(1)).
Each work-day employees (with the exception of on-call employees) must have at least 11 hours off work, 8 hours of those must be taken in a single chunk (ss. 18(1) – 18(3)). Employees must also be given 24 hours off work every workweek or 48 consecutive hours off for every two consecutive workweeks (s. 18(4)). Finally, employees must be given a 30 minute eating period for every 5 hours worked. These breaks need not be paid unless the employer agrees otherwise, and do not count toward overtime (s. 20(1)).
In general, hours worked in excess of 44 hours in a week qualify for premium (overtime) pay. The formula is 1.5 x hourly wage x overtime hours (ESA, s. 22(1)). For salaried employees, an hourly wage may be determined by dividing the weekly salary by 44 (or whatever the threshold for overtime hours is for their particular industry or profession).
Agreements to Vary
To be clear, employers and employees can NOT contract out of the ESA minimums, however there are some limited circumstances under which they may agree to alter some aspects of their relationship. These are called agreements to vary and you can read more about those here.
A caveat to all of this is that the ESA has a limited scope and does not apply to absolutely everyone. Let’s do an illustrative example using the Ontario Ministry of Labour’s online Special Rule Tool, and the relevant regulation under the Act, O. Reg 285/01.
Suppose, for the sake of our example, that you’re looking to hire a software developer.
Step 1: Open the Special Rule Tool. Immediately, there should be one entry in the contents that stands out – information technology professionals.
Step 2: Navigate to the information technology professionals section. You should see a simple breakdown of what information technology professionals are and aren’t entitled to.
If you’re certain that your employee fits within this definition, you’ve now got an idea of which standards you need to meet and which ones are negotiable. If you’re less than certain, you can navigate to the regulation at the bottom (O.Reg 285/01) and double check the definition of “information technology professional” (s. 1) against your job description. Once satisfied, you’ll need to know what this means in detail.
Step 3: Since we’re concerned with employee hours, scroll down to the relevant section (s. 4 – Exemptions from Part VII of the Act, or specifically s. 4(3)(b)), you should see that Sections 17, 18, and 19 of the ESA do not apply to information technology professionals.
Step 4: Open up the ESA, navigate to those sections, and determine what exactly this means for your employee and how it could affect the way you draft your contract.
In sum, we learned that your software developer might not be entitled to all the rights we discussed above! Remember, the ESA establishes the default, the regulation lists the exceptions, and the Tool provides a useful summary but for the details of what that means you’ll need to look at the legislation itself.
A few of the other common exceptions are explored below, though this is not a comprehensive list:
Managers: Managerial employees are exempt from the provisions on work hours (O. Reg 285/01, s.4(1)(b)), and overtime pay (s.8(b)). For the purposes of the Act, an employee with authority to make managerial decisions (ex: hiring and firing) is managerial. The exemption stands even if a managerial employee performs non-managerial tasks on an “irregular or exceptional” basis (s.8(b)). However, managers might be entitled to overtime if they have worked in excess of the appropriate overtime threshold and greater than 50% of the total time worked was spent on non-managerial tasks (Glendale Golf and Country Club Limited v. Sanago, 2010 CanLII 4265 (ON LRB), para 71).
Transportation: Local cartage drivers are entitled to overtime pay only for hours in excess of 50 as opposed to the usual 44 (O. Reg 285/01, s. 17). Highway transport truck drivers are entitled to overtime only for hours in excess of 60 (s. 18).
Professionals: Your business may employ professionals such as architects, engineers, and surveyors who are exempt from some provisions. It would be useful to consult the aforementioned Special Rule Tool to determine your exact obligations to these employees.
- Don’t let your employees work for longer than 8 hours a day, or 48 hours a week.
- Give employees at least 8 hours off between shifts each day.
- Make sure your employees are taking 30 minute breaks every 5 hours.
- Give employees 24 hours off after one work-week, or 48 hours off if they worked two work-weeks non-stop.
- You are liable for overtime pay if employees work more than 44 hours per week – it is your responsibility to send them home before they work those hours if you do not want to pay for overtime.
- Determine what provisions of the ESA apply to your particular situation by using the Special Rule Tool.
Author: Sahil Kanaya