Can I get paid for all my overtime?
QUESTION: Last week I was terminated after nine months of employment in an office position. The demands of the job were extraordinary and for the last four of those nine months I was constantly being warned that if I didn’t keep up with the workload I would be out of a job. As a result, I started showing up an hour early every day and working at least two hours past the time I was meant to go home. I did this despite the fact that I was only being paid for 40 in an effort to keep my job. Clearly, it didn’t work.
My boss kept insisting that my responsibilities could be fulfilled in the 40 hours a week I was supposed to work and that it was my own fault if I had to work extra hours. If things had settled down and I had kept my job I wouldn’t worry about it, but now I’m wondering if I can get paid for all of that overtime?
ANSWER: Yes, you can. The Employment Standards Act
requires that regular wages be paid for every hour worked in a week up to 44 and time and a half after 44 if work is permitted or suffered to be done by the employer. It appears your employer was fully aware of the extra hours you were working and let you do it. That means the wages have to be paid.
If you file a complaint with the Ministry of Labour, they will not entertain a defense from the employer that it did not authorize or schedule the work.
In a best case scenario, there will be security or computer records that will show exactly what time you logged in and logged off to establish your hours of work. Second best would be if you kept a day-timer noting your hours of work. In the absence of those, the investigating officer will hear the evidence of both sides about how much time was worked over the regular 40 and make a judgment call based on the evidence.
As published in the Hamilton Spectator, April 1, 2013
Ed Canning is a partner practicing in the Labour & Employment Group at Ross & McBride LLP.