In some industries, including the tech industry, employees may need to be flexible about their hours, depending on the work that needs to be completed. For instance, there may be high-priority projects that may add to existing work. While it may not necessarily be specified in the employment contract, employees may do more work outside their regular hours. In Ontario, employees considered “IT professionals” are not entitled to overtime pay. However, they may be entitled to wages for additional hours worked outside of regular hours, according to a recent case, Techblocks Inc., [2022] O.E.S.A.D. No. 132.
This post will discuss Ontario employment standards legislation, which states that information technology professionals are not entitled to overtime pay. We will explain that despite the lack of overtime pay, employees working additional hours may be entitled to wages for their work. This post will examine the Techblocks case to explain how an employee was found to be owed additional wages for a project that involved the employee working outside of his regular hours. Finally, this post will provide helpful insights for both employees and employers in situations where an employee are working additional hours outside of their regular hours.
No Overtime Pay for “IT Professionals” in Ontario
In Ontario, the Employment Standards Act provides minimum standards for employees, which include regulations on overtime pay and working hours. One of the regulations describes exemptions that apply to particular categories of workers, which include “information technology professionals.”
IT professionals are employees primarily investigating, analyzing, designing, developing, implementing, operating, or managing information systems based on computer and related technologies. Their work involves applying their specialized knowledge and professional judgment.
If an employee falls within the definition of an IT professional, Parts VII and VIII of the Employment Standards Act do not apply to them. Therefore, the following minimum standards for working hours do not apply:
- Working no more than 8 hours a day (unless there is a valid agreement to work more or an emergency);
- Working a maximum of 48 hours per work week (unless there is a valid agreement to work more);
- At least 11 consecutive hours free from performing work each day;
- A period of at least 8 hours free from the performance of work between shifts unless the total time worked on successive shifts does not exceed 13 hours (unless there is a valid agreement specifying otherwise);
- A period free from the performance of work equal to,
- at least 24 consecutive hours in every work week; or
- at least 48 consecutive hours in every period of two consecutive work weeks.
- Eating periods of at least 30 minutes every five consecutive hours worked (unless otherwise agreed upon).
Employers are also not required to pay overtime pay to IT professionals, which is typically at least 1.5 times their regular rate for each hour of work over 44 hours a week.
Entitlement to Wages for Extra Hours Worked
Even if an IT professional is not entitled to overtime pay, they may still be entitled to wages based on the additional hours worked.
According to section 1(1) of the Employment Standards Act, wages include monetary remuneration that an employer must pay to the employee under the employment contract terms, whether verbal or written, explicit or implied. Under this section, wages do not include gifts or bonuses based on the employer’s discretion and are unrelated to hours, production, or efficiency.
Also, under s. 1.1(1) of Ontario Regulation 285/01, work is considered performed by an employee for the employer where work is “permitted or suffered to be done by the employer.” This definition would capture additional work that the employer permitted or asked to do. In some cases, as in the Techblocks case, employees may be entitled to wages for additional hours worked if they were requested or permitted by their employer.
Tech Worker Entitled to Wages For Additional Work From Employer Outside Regular Hours
In the Techblocks case, the court found that the employer had to pay the employee unpaid wages for his work on a project that involved additional hours outside his regular working hours.
The employee worked as a senior mobile developer from 2017 to 2020. The employee claimed the employer did not pay his wages for 403 work hours from October 2019 to February 2020. During this period, he had worked outside his regular hours to work on another project for the employer. Also, the employee claimed he was not paid his annual bonus in 2019.
The court found that the employee was exempt from overtime pay as he fell within the definition of an IT professional.
Employees were expected to keep track of their hours since the office was a hybrid model where they sometimes worked from home or elsewhere. The employer claimed that employees were generally expected to work 8 hours a day, but working 10 to 12 hours on some days was not unusual. The employer also had an overtime policy in their employee handbook, which required that if overtime is required for exceptional situations, it must be approved by Human Resources or the CEO in advance. The policy specified that if an employee performs overtime, they are permitted to take time off in lieu of overtime pay at the rate of one hour of paid time off for each hour worked overtime.
In addition to working on a project with an existing client, the employee was also assigned to work on another project with the City of Brampton (“COB project”). He was not relieved of his existing duties but was asked to work evenings and weekends to deliver the COB project.
After completing the project, the employee requested six weeks off, with three weeks to be paid vacation and the remaining three weeks unpaid leave. The employee claimed that the employer advised him that he would be paid for six weeks and that three weeks were compensation for working on the COB project. His request was not approved.
The court found that the amounts claimed by the employee for additional hours worked were wages under the legislation. Also, the court found that the employee agreed to pay the employee three weeks to compensate him for his work on the COB project. Ultimately, the employer was ordered to pay the employee for the three weeks of vacation, as agreed upon and specified in the employee handbook policy.
Contact Haynes Law Firm in Toronto for Advice on Employment Contracts and Overtime
Our experienced employment law legal team at Haynes Law Firm in Toronto can assist you with issues arising from employment contracts, including terms and policies regarding overtime. Our team has experience working with professionals in the technology industry. For employees, our goal is to ensure that they understand their rights and receive maximum compensation. Haynes Law Firm also assists employers in avoiding liabilities that may arise from policies that contravene employment standards. We are dedicated to finding the best resolution for you.
To book a consultation, please contact us online or by phone at 416-593-2731.
