One of our HR Experts from Beyond Rewards Inc., answered the following question from one of our Employer members:
We are a private non-union company. We have an open position in our company which generally requires working weekends only. This position is staffed by contract workers who are available on a part-time basis. One of our contract workers is no longer available and the position was posted internally and at various colleges. One of regular employees has applied for this position and is willing to work the additional hours on the weekend without getting overtime. The jobs are very different and it would be under a separate contract with a different rate. Are we able to provide the position to a regular worker already on our payroll without incurring overtime?
By Brandy Douglas
Beyond Rewards Inc.
Assuming that the hours worked by the employee would total more then 44 hours in a workweek, that this scenarios play out in Ontario and that both of these positions fall under the Employment Standards Act, 2000 (ESA) even if there is an agreement between the employer and employee they would have to be paid overtime - time and a half for the hours in excess of 44. In this scenario it does not matter if they were performing a different role, under another contract or were paid a different rate of pay, the ESA clearly states that overtime is to come into effect after 44 hours and Section 5 of the ESA clearly provides that neither the employer or employee can wave or contract out a minimum standard in the Act.
If however, both of these positions were exempt from the overtime provisions of the ESA there would be no overtime to incur and this scenario would be perfectly okay. However, it is important to remember that employment standards are put in place for a reason and if an employee does not have proper work/life balance productivity could be greatly reduced. It is also important to note that if the employee were sick, needed a leave of absence or left the organization that there would now be two positions to fill.
The final scenario would be if one of the positions fell under the ESA and one was exempt. In this scenario if at least 50 percent of the hours the employee works are in a position covered under ESA, they would qualify for overtime pay. For example, if the employee works for a taxi company both as a dispatcher in the office during the week and a cab driver on weekends, working as a cab driver they are exempt from overtime pay, but working in the office they are not. During a work week, if the employee works 30 hours in the office and 24 hours driving a cab, for a total of 54 hours, this is 10 hours over the overtime threshold of 44 hours. Since the employee has spent at least 50 percent of his working hours that week as a dispatcher (a job category that is covered under ESA), they do qualify for the 10 hours of overtime pay.
To find out if a position is exempt from the overtime provision of the ESA visit:
To learn more about Overtime in Ontario and the ESA visit:
Brandy Douglas is a Human Resource Management Consultant based in Guelph, Ontario.
Beyond Rewards Inc.
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