Taking care of business every day Taking care of business every way I've been taking care of business, it's all mine Taking care of business and working overtime- Takin' Care of Business, Bachman-Turner Overdrive
Employment lawyers across Canada can thank Randy Bachman and two recent Supreme Court of Canada decisions if the tune "Takin' Care of Business" is their latest earworm. Why? Read the CBC article, Bank Overtime Lawsuits. The time is ripe to review provincial employment standards as they relate to overtime in Atlantic Canada.
The basics – hours of work and overtime rates
New Brunswick – minimum wage rate rule
The Minimum Wage Regulation, under the New Brunswick Employment Standards Act (the Act), sets the maximum number of hours for which an employee working in New Brunswick can be paid minimum wage at 44 hours per week. An employee who works in excess of the maximum 44 hours per week must be paid at a rate of not less than one and one-half times the minimum wage rate. So, if an employee's regular hourly wage rate exceeds the sum of the minimum wage rate times one and one-half, s/he won't be entitled to any further compensation for overtime hours than his or her regular wage rate. For example, the minimum wage rate in New Brunswick is currently $10/hr. An employee now earning $15/hr, or more, ($10 x 1.5 = $15.00) isn't entitled to any additional compensation for overtime, absent an agreement to the contrary with his or her employer.
Nova Scotia – regular wage rate rule for some; minimum wage rate rules for others
Under the Nova Scotia Labour Standards Code (the Code), when an employee is "required" to work more than 48 hours in a work week, he or she is entitled to one and one-half times his or her regular wage rate. The word "required" is important as the Tribunal has said (most recently in Jannot v. Julien's Pastry Shop Limited) that an employee who isn't "required" to work, but who simply chooses to come in early or stay a few minutes late of his or her own accord won't be entitled to overtime pay for that additional time spent at the workplace.
Prince Edward Island – regular wage rate rule for all
The standard work week in P.E.I. is 48 hours. Each hour of work performed by an employee beyond 48 hours in any given week is considered an overtime hour subject to overtime pay at a rate of one and one-half his or her regular rate of pay.
Newfoundland and Labrador – minimum overtime wage rate rule for all
The Newfoundland and Labrador Labour Standards Act (the Act) says that an employer must pay an employee at least the minimum overtime wage rate for any hours worked in excess of 40 hours per week. The Newfoundland and Labrador Labour Standards Regulations, enacted under the Act, set the minimum overtime wage at $15/hr, which is one and one-half times the minimum hourly wage of $10/hr. So, if an employee's regular hourly wage is $15/hr, the employer isn't required to pay that employee any more than that amount for overtime hours.
Who's in and who's out
Few general exemptions apply in New Brunswick, but we note that the government website says that employees paid salary, commission or by the piece must receive at least the minimum wage for all hours worked "under the control" of the employer. In addition there are special minimum wage rates for certain categories of employees engaged in government construction work and counselors and program staff at residential summer camps.
Section 2 of the General Labour Standards Code Regulations provides certain exemptions to the regular overtime provision in the Code. Exempt employees required (again, pay attention to the word required) to work more than 48 hours in a work week must be paid at a rate of not less than one and one-half the minimum wage rate for those extra hours. The current minimum wage in Nova Scotia is $10.15/hr. Thus, those employees exempted from the regular overtime rate must be earning at least $15.25 for every hour worked in excess of 48. Exempt employee include: "duly qualified practitioners or students while engaged in training for" architecture, dentistry, law, medicine, chiropody, professional engineering, public or chartered accounting, psychology, surveying; persons holding supervisory or management positions, or who are employed in a confidential capacity; information technology professionals; etc.
Prince Edward Island
The Standard Work Week Exemption Order exempts certain industries from overtime after 48 hours including trucking, health care and fish processing. In those industries, overtime kicks in after 55 hours. The definition of "employer" in the Act includes a manager. Thus a "manager" may be exempt from overtime so long as the manager has actual control or direction or responsibility directly or indirectly of an employee as defined in the legislation.
Newfoundland and Labrador
There are limited exemptions from standard working hours (i.e., 40 hours) in the Act. These include some farm workers, housekeepers or babysitters.
The practice of banked overtime is not addressed nor specifically permitted in the Code. Nonetheless, the practice does exist; has been considered by the Labour Board; and was enforced in at least one decision (Logan v. David Hayward Systems Incorporated (c.o.b., North Shore Internet Services) (1999), Nova Scotia Labour Standards Tribunal, Record No. 1520.) Thus, the practice of providing lieu time for overtime hours worked is permissible.
Prince Edward Island
The Prince Edward Island legislation says that an employee can choose to accumulate or bank overtime hours to be taken later as paid time off. Such a request must come from the employee and the employer must agree in writing. If an employee elects to bank overtime, s/he must take the paid (at a rate of one and one-half hours of paid time off for each hour of overtime accumulated) time off within three months of the work week in which the overtime was earned.
Newfoundland and Labrador
The Newfoundland and Labrador legislation says that if the employee and the employer agree, an employee may receive one and one-half hours of paid time off work for each hour of overtime worked instead of overtime pay. If this is the case, the time must be taken off within three months of the date the overtime is earned unless both parties agree to extend the time period. Any accumulated overtime, whether by payment or by time off, must be finalized within 12 months of the date the overtime is earned.
What this means for you
We can't encourage you enough to revisit your overtime policies to ensure they meet or exceed what is required from your jurisdiction's employment standards. But in light of the class actions now making their way through the courts, it may be even more critical for you to ensure that your employees are not performing unauthorized work in excess of applicable overtime thresholds. This is where records become essential. Require employees to get pre-authorization to perform overtime work. This may not be so important when an employee is working through lunch and leaving early that same day, but it definitely will be important when an employee's employment is terminated and the employee then claims he or she is owed hundreds of hours of overtime. Your best bet is to have proper documentation to dispense with such a claim. Authorize and record. Authorize and record. As the song says, you should be taking care of business, when it comes to overtime, every day.