OVERTIME - ARE YOU ELIGIBLE?

QUESTION: I am a manager at a hotel and a salaried employee.  While my pay cheque always indicates that I work 40 hours per week, it never changes regardless of how many hours I work. At one time, I did not really mind putting in the extra hours but there have been staff cutbacks recently and more and more hours have been demanded of me.  Am I entitled to overtime or paid time off in exchange for these overtime hours?
 
ANSWER: The quick answer you will get if you contact the Ministry of Labour when they are not on strike is that managers are not entitled to overtime under the Employment Standards Act.  What the Act actually says it that you are not entitled to overtime if you perform work that is supervisory or managerial in character and you perform non-supervisory or non-managerial tasks on an irregular or exceptional basis. 
 
This exemption has historically been criticized as discriminating against small business owners.  In a small business, managers usually do some hands on work on a regular basis.  Only in larger organizations is it the case that managers simply Asupervise@.  
 
The Ministry of Labour will not exclude Lead Hands or working Foreman from entitlement to overtime.  If someone=s main job is to be the cook or the bartender and ancillary to that also supervise other employees, they are still entitled to overtime. 
 
Many decisions in the past concerning who is and is not a manager have focused on what percentage of the employee=s time is spent performing non-managerial tasks.
 
In one case, an editor of a newspaper claimed overtime because he worked excessive hours.  He tried to characterize himself as non-managerial by saying that he would actually do some of the writing for the newspaper, not just edit it.  The court said that one single non-managerial act does not necessarily destroy the essential nature of a job as being managerial in character.  A court pointed out that if the managing editor of the New York Times writes a single editorial or reports a single story, that does not necessarily destroy the essential character of his job as being only managerial.  It is a question of degree.
 
As a result of all of this, answering your question without further details is impossible.  It depends what kind of work you are doing on a day-to-day basis.  If you routinely fill in at the front desk, serve food, set up rooms or perform cleaning or maintenance functions, you=re probably entitled to overtime.  If you simply co-ordinate and supervise these tasks, you=re probably out of luck.
 

Keep in mind, that even if you are deemed to be non-managerial for the purposes of the sections of the Employment Standards Act dealing with overtime, you only get overtime once you have worked more than 44 hours in a week.  The Ministry of Labour will assume that your salary covers you for the first 44 hours unless you have strong evidence that the 40 hours indicated on your pay stub actually reflects the hours you agreed to work when you took the job.  After 44 hours, you are entitled to overtime which, with your agreement, can be compensated by way of an hour and a half off with pay for every hour over 44 in a week that you work.
 
The problem that you face is that if you are at a large hotel or a hotel chain, your employer will fight this tooth and nail.  Once word gets out that the employer is paying overtime to managers, every manager working for the organization will want in.  My advice is to look for new work if the overtime is getting out control.  Once you find a new job, file a complaint with the Ministry of  Labour.  If  they find that you do enough non-managerial work to qualify for overtime, they can order the employer to pay for up to a year of unpaid overtime so long as the amount does not exceed $10,000.00. 
 
As published in the Hamilton Spectator, April 15, 2002
 
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com