Employment & Labour

Can managers refuse overtime?

By AdvocateDaily.com Staff

Refusing to work extra hours is risky business for managers, Toronto employment lawyer Bram Lecker tells AdvocateDaily.com.

Lecker, principal of Lecker & Associates, explains that, like all regular employees, managers’ relationships with their employers are governed by Ontario’s Employment Standards Act (ESA).

However, regulations under the Act also exempt those “whose work is supervisory or managerial in character” from the overtime provisions, which would otherwise entitle anyone to 1.5 times their normal rate of pay for any time worked beyond 44 hours per week, he says.

Lecker says the legal definition downplays the importance of an employee’s title since an individual can be known as a manager without actually performing a supervisory role. The reverse is also true, he adds, so that a person who is not labelled as a manager may still be exempt from overtime pay if the work has managerial character.

“If they were to refuse to work any additional hours, it’s very risky, because previous court decisions say employees have a duty to follow reasonable orders from an employer,” Lecker says. “You’d need a pretty good reason to say no.”

Expectations will depend on the industry in which the manager is employed, but Lecker says certain tasks, such as filling in for someone who is off sick, staying behind to close up shop or count inventory, are typically regarded as managerial.

“Those are implied duties that they accept by virtue of being a manager,” he says. “Where it crosses into a grey zone is when a transitory request turns into something more permanent.”

Lecker says judges also tend to look kindly on managers when extra work begins impinging on the employee’s work-life balance.

“Employers can’t just expect managers to work forever until they drop dead from exhaustion,” he says. “The hours worked have to be reasonable and the point at which they become unreasonable will depend on the industry and what’s expected in the employment contract, among other factors.

“The best response for managers is to document everything,” Lecker adds.

According to Lecker, the overtime provisions of the ESA are subject to more change than most. Over the years, the exemptions have expanded to react to the economic landscape, and currently include information technology professionals, taxi drivers, mushroom growers, landscape gardeners, and more.

“It’s an area that is always moving, especially with the arrival of artificial intelligence and technology disrupting everything,” he says. “The law is always trying to catch up.”

Earlier this year, the legislation received its latest update with the coming into force of Bill 148, the Fair Workplaces, Better Jobs Act, 2017, says Lecker.

The new provisions change the calculation of overtime for employees who have multiple rates of pay with the same employer and expand the “three-hour rule,” which traditionally entitled anyone required to appear at work to be paid for at least three hours. Under Bill 148, the rule will also apply to on-call employees, whether or not they are called, and those whose shifts are cancelled within 48 hours.

The amendments also came with a promise to boost enforcement from the provincial government, which announced a plan to add up to 175 more employment standards officers, along with a program to educate both employees and businesses about their rights and obligations under the ESA.

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