Overtime Pay: What Is it and Who Is Eligible?

Whether you are an employee working in British Columbia, or an employer, overtime entitlements are often at the forefront of your employment relationship.

As a starting point, non-managerial employees are entitled to overtime pay on any hours worked in excess of eight hours in a day, or 40 hours in a standard work week, and are generally payable at a minimum of 1.5x an employee’s hourly rate. If an employee works greater than 12 hours in a day, section 40 of the Employment Standards Act, [RSBC 1996] C 113, sets out that employees must be paid double their hourly rate for those excess hours.

 

Who is entitled to Overtime Pay? 

There are limited situations in which employees will not be entitled to overtime pay. For example, it may not apply if an employee has signed an averaging agreement with their employer.

Moreover, one of the most common misconceptions around overtime in British Columbia is that it does not apply to salaried employees. This could not be further from the truth. Part 7 of the Employment Standards Regulations, BC Reg 396/95, sets out certain professions that are exempt from the legislated overtime rules, but other than the professions listed therein, it will apply to all non-managerial or non-unionized employees, whether paid an annual salary or on an hourly basis.

In the case of Civitas Urban Design & Planning Inc. v Director of Employment Standards, BC Employment Standards Tribunal, June 16, 2003 (Roberts), the Employment Standards Tribunal affirmed that managers are exempt from the overtime provisions outlined in the Employment Standards Act, unless their employment agreement states a contrary intention.

It is important to note that simply calling an employee a “manager” does not automatically exempt that individual from their overtime entitlements. The Employment Standards Act sets out that an individual must have the discretion to supervise and control staff, or play an integral role in a human resources function to be considered a manager.

 

What to do if you have worked overtime but have not been paid?

If you have worked overtime in the last 12 months, and are not a manager or unionized employee, and you do not work in an industry that has been exempt under part 7 of the Employment Standards Regulation, you may be entitled to extra pay. Consequently, if you believe that you are entitled to extra pay, you may bring a claim with the Employment Standards Branch for unpaid wages. This complaint must be made within 12 months of the date that the overtime was earned.

Once a complaint has been filed with the Employment Standards Branch, an investigator will investigate your complaint and help you validate your entitlements to past overtime hours that you have not been paid for.

If you think you have a claim for extra pay we recommend you contact an employment lawyer who can give you legal advice and advise you on the merits of your claim.

 

Key Considerations around Unsuccessful Claims for Unpaid Overtime

Most commonly, unsuccessful claims for overtime pay fail because of a lack of the employer’s prior authorization to work extra hours. In the decision of Wills v Small Town Press, BC Employment Standards Tribunal, September 2, 2003 (Orr), the Employment Standards Tribunal set out that an employer is not required to pay overtime to an employee who worked excess hours on their own initiative.

Although this general rule is not set in stone, for this reason, it is always recommended to have any overtime requests well documented through accurate schedule-keeping, and have any requests or authorizations acknowledged in writing by your employer prior to working extra hours.

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By Blake Storey

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