It’s hard to pinpoint how much wage theft costs Canadian workers every year, but it may be in the billions. A salaried worker who makes $80,000 a year and consistently puts in 50 hours a week, for instance, could be missing out on up to $20,000 in overtime pay each year. But despite these alarming numbers, less than half of all workers who put in overtime say they’re getting paid for those extra hours.
There are many rules that govern who qualifies for overtime and when—and they vary by province, industry, and even job—so many employees who are entitled to overtime pay may not even realize it. We spoke with Stephen Wolpert, a partner with employment law firm Whitten & Lublin, to learn what you can do to make sure you’re getting paid what you deserve.
Before You Start
It’s important to know that you can turn to an employment lawyer at any point. Making a claim for overtime pay can be complicated, but an experienced lawyer will be able to guide you to the best course of action at every stage.
Step 1: Determine Whether You Actually Qualify for Overtime Pay
“A lot of people assume that they’re not entitled to overtime pay because they earn a salary,” says Wolpert. “That’s wrong—salaried employees are entitled to overtime pay, as long as they’re not management” (and even then, some low-level managerial or supervisory positions may qualify). “If an employer says, I didn’t tell you you could work overtime, that excuse doesn’t cut it,” he continues. “If they say, Overtime is built into your salary, that won’t cut it either. There really aren’t a whole lot of good excuses for not paying overtime pay.”
That being said, there are many exceptions to who qualifies for overtime pay, and under what conditions. See the bottom of this article for links that give an overview of OT pay laws by province and territory.
Step 2: Start Logging Your Hours—Diligently
So you’ve determined you’re owed some extra pay. Before you approach your HR rep, you’ll need to produce a credible figure—“I feel like I’ve been putting in a lot of extra time” isn’t enough. “Start tracking your hours going forward, in writing,” Wolpert advises. Get a notepad, or send yourself an Email from your work address—what’s important is to keep precise and thorough records, and to do it daily. Don’t try to remember post hoc. “That way, if you ever find your way in front of a court, or you make a complaint to the Ministry of Labour, you can say, I wrote that on that day. I know that’s how much I worked, because I tracked it in real-time. That can be very powerful.”
If possible, supplement your records with those of your employer—swiping in and out, timesheets, making phone calls, logging into your system remotely, and so on. And don’t forget the hours you spend working at home; if you’re up all night writing Emails, or take a project with you to work on over the weekend, you’re still working, and should still be counting hours.
Still, Wolpert cautions, “If it’s days on end, that’s fine; you can collect a little bit of data. But I don’t want to send a message to anybody that they should sit on this for a while.”
Step 3: Talk to Your Coworkers
“There’s strength in numbers in just about any kind of employment battle,” Wolpert says, “whether it’s overtime pay or anything else.” Your peers may be reluctant to ruffle feathers, or to be seen as a difficult employee—but that’s exactly why raising the issue as a group can help to ease your progress.
It’s natural to be apprehensive, but as Wolpert explains, “in theory, there should be no repercussions at all, and no risk for seeking to enforce your right to overtime pay. Employers have to comply, and they’re not allowed to retaliate against you in any way for asking.” Still, he cautions, “That’s the technical, legal answer, and in practice, that isn’t always true.” If you anticipate pushback, now may be the time to reach out to a lawyer that can help to ensure that the law is carried out.
Step 4: Ask Nicely
If you’re worried about your request escalating into a confrontation, know your options and what you’re comfortable with. If your employer is challenging your claim, you may choose to work flexible hours going forward—dropping hours here to make up for extra hours worked there but still working the same number of hours per week (depending where you live; some provinces calculate hours daily as well as weekly). You can also opt to take those hours off at a later date instead of claiming pay—just remember you’re entitled to 1.5 hours off for every 1 hour of overtime you put in.
At this point, it’s a good idea to keep careful records of your correspondence with your higher-ups. If retaliation from your employer is in your future, it may ramp up slowly, but you’ll still need to present documentation of it. Maybe you weren’t invited to have some cake on a coworker’s birthday and thought nothing of it at the time—but the same event can look different weeks later, after a pattern of retaliation has emerged.
Step 5: Call In Your Allies
By this point, you should have received the overtime pay you deserve. If you employer has refused, or if you feel like you’re being punished for asking, it’s time to call for backup. Wolpert also advises seeking a lawyer if you feel your overtime issue is just one among many—a symptom of a larger problem.
Hearing from a lawyer may be all it takes to sway your employer. “Sometimes it’s a demand letter, or just a phone call where we say, Listen, my client says he’s entitled to overtime pay—why haven’t you paid it? ” A lawyer can also help refute any excuses your employer gives for (illegally) refusing to pay up.
Hiring a lawyer isn’t your only option. “It’s important for people to understand that they have recourse that doesn’t necessarily involve a lawyer. There are procedures—whether you’re talking about the Canada Labour Code or the Employment Standards Act—for making a complaint.” This could be as simple as filling out a form online. “The Ministry will do much of the legwork. They will investigate. It’s not a perfect tool, but it’s underused.”
National overview of overtime regulations
Canada Labour Code (applies to all nationally regulated industries)
Prince Edward Island