Doesn’t really answer either question. What does the Canada Labour Code say? What is the most recent legislation that speaks to this?
To summarize, by default managers are not entitled to overtime in the Canada Labour Code; however, there are issues that can arise from how employers classify managers and how the government and courts may look at an employer’s role/classification. If an employee is truly a manager/executive, in so much as their role demands more than 50% of their work day being spent attending to managerial functions, they are not eligible for overtime pay.
Labour laws differ from province to province. Usually though anyone who works more than 40 to 44 hours per week is owed overtime. The rate for this is one and a half times the standard amount.
If an employee has managerial responsibilities, they generally do not qualify for overtime. Neither do professions such as lawyer, dentist and architect.
But looking at lists of overtime exclusions by province can be mind-boggling. According to Canadian Business magazine, in British Columbia “high-technology professionals” can’t get overtime. Same in Ontario, where it also applies to swimming pool installers, ambulance drivers, mushroom growers and janitors.
Meanwhile a bunch of investment advisors are suing for overtime in a class action suit. As are bank tellers and others.
The “50% Rule”
Not all managerial or supervisory jobs, however, consist of purely managerial functions. In many cases, managers or supervisors may be required to perform tasks that their staff also performs. This can lead to confusion regarding the overtime exemption, and so what is known as the ‘50% Rule’ was created to help clarify matters.
The 50% Rule says that if at least 50% of a person’s tasks fall within a category that would normally entitle a person to overtime, then they will be entitled to receive overtime.
For example, let’s say that a supervisor oversees a team of IT professionals in an office environment. If the supervisor spends 26 hours in a week performing the same IT duties as the rest of their team, and 24 hours performing other tasks such as scheduling, recruiting, project managing, and other supervisory tasks, they have worked 6 hours over the minimum threshold of 44 hours. Since more than 50% of those hours were spent in non-supervisory functions, they would qualify to earn 6 hours of overtime for that week.
Starbucks Class Action
The 50% Rule is at the heart of a class action recently filed on behalf of Starbucks managers across Canada. As managers, they have been exempt from overtime pay, however, managers claim that they often work up to 80 hours per week and largely perform the same duties as non-managerial staff. The suit claims the managers have been unfairly exempted from overtime due to the ‘systemic misclassification’ of their roles.
The representative plaintiff in the case claims that while he was scheduled to work 40 hours per week as a manager at various downtown Toronto locations, he often worked between 50-80 hours per week, to cover for staff who failed to show, or called in sick for their shifts. Further, he says that while non-managerial staff clocked in and out to record their hours worked, managers were not permitted to do so, and were dissuaded from reporting hours worked in excess of their schedule.
Most importantly, he claims that managers are allotted 12 hours per week to attend to managerial functions such as payroll and schedules, the remainder of their time is spent performing the same tasks as their staff, including serving customers, preparing drinks and washing dishes.
Source: Grosman Gale Fletcher Hopkins LLP