If you work for more than 44 hours a week, you may be entitled to overtime pay. If you are terminated from an employment position, you may be able to receive compensation for hours worked above your regular work schedule, as it is money you have earned through your work.
Overtime pay is calculated based on the total compensation of an employee, including commission. Overtime pay is 1 ½ times the employee’s regular rate of pay, also known as “time and a half” and is calculated on a weekly basis. Even if your employment contract states that you may be required to work for additional hours, you should be paid time and a half. All employees who work above their normal hours weekly are entitled to overtime pay, except for a long list of exceptions in the Employment Standards Act (ESA). Professionals in fields such as medicine, law, engineering, IT and accounting are generally exempt from overtime pay, with a full list of excluded professions in Section 2 and Section 8 of the Regulations.
Managers and supervisors are generally exempt from overtime pay, but the duties they perform must actually be managerial in nature. In Glendale Golf and Country Club Limited v. Massimo Sango, the employee was a Head Chef; however, he often assumed the duties of kitchen staff when there was a staff shortage, and worked overtime. Although he was technically a manager, he performed non-managerial tasks more than 50% of the time. The court therefore found that despite the title of his position, ‘managers’ are generally entitled to overtime pay if they spend more than 50% of their time on non-managerial tasks.
In some cases, the employer may argue that they did not approve the employee working overtime. Regardless of this, if you worked the overtime hours, you must receive overtime pay. Additionally, employees and employers cannot contract to waive entitlement to overtime pay, and these types of agreements will not be enforceable in court. However, the employee and employer can agree to take paid time off, rather than receive overtime pay.
If you have been terminated and are being deprived of overtime pay, please give us a call for a free consultation.