Salaried OT

[Sarah Parker]

#95500

Forum: Community

We have a salaried employee who was a site supervisor on a construction project. The employment contract stated 9 hour days. The employee worked out of town on a project and has now come forward with over 500 hours of OT worked from March 2024-October 2024. The employee has some, but not all of the duties under Manager definition in the ESA. Needing some help with this one.

[Haley O’Halloran]

#95503

This is a nuanced situation involving the intersection of employment contract terms, overtime eligibility, and managerial exemption status under employment standards legislation. Here’s a structured breakdown to help guide your response and potential next steps.

1. Overtime Entitlement Under the BC Employment Standards Act (ESA)
In British Columbia (assuming your organization operates under the BC ESA), overtime pay is required unless an employee meets certain exemption criteria.

General Overtime Rules:
Employees must be paid time-and-a-half after working 8 hours in a day and double time after 12 hours in a day.

For weekly overtime: time-and-a-half after 40 hours in a week.

Salaried Status:
Being salaried does not automatically exclude an employee from overtime pay. What matters is job duties, not the method of compensation.

2. Managerial Exemption
The ESA exempts managers from overtime if they primarily perform managerial or supervisory duties. The Act defines a “manager” broadly, but in practice:

An employee is only exempt from overtime if managing is their principal function—not simply because they perform some managerial tasks.

Criteria (based on ESA Policy Interpretation Manual):
The employee directs the work of other employees, makes disciplinary decisions, hires/fires, or directly represents the employer.

The employee has the authority to make independent decisions about matters of significance.

Occasional supervision or a “lead hand” role is not enough for exemption.

So if your employee only meets “some” of these criteria and also regularly performed physical or routine work, they may not qualify as exempt, making them entitled to overtime.

3. Contractual Considerations
You mentioned the employment contract states 9-hour days. If that was a flat schedule (e.g., no mention of OT pay or averaging agreement), and the employee consistently worked beyond those hours, then the ESA’s daily and weekly overtime provisions may apply.

If there was no written averaging agreement under the ESA, allowing workdays to exceed 8 hours without triggering OT, then overtime is likely owed for any hours over 8/day or 40/week.

4. Out-of-Town Work and Tracking Hours
You noted the employee worked out of town. This complicates matters:

Travel time to a remote worksite may count as work time, especially if travel is outside of the regular commute.

If the employee was effectively “on duty” for extended periods (e.g., being responsible for safety or site operations at all times), this may strengthen their claim.

However, the onus is on the employee to substantiate the overtime claim with credible time records or corroborating evidence (emails, reports, witness statements, etc.).

5. Next Steps and Risk Assessment
Short-Term:
-Assess whether the employee truly meets the ESA definition of “manager.”
-Review the employment contract for clauses about hours of work, overtime, averaging agreements, or waivers (although waiving OT rights is not enforceable under ESA).
-Request evidence of the claimed 500 OT hours and cross-check with project logs or supervisor notes.

Medium-Term:
Consider consulting with an employment lawyer or HR consultant to:

-Evaluate liability risk
-Determine possible settlement or remediation strategies

Review and revise employment contracts for future hires to:
-Clarify OT eligibility or exclusions
-Include ESA-compliant averaging agreements if needed

Based on your description, there is a strong chance this employee is entitled to overtime, unless:

They were truly a manager under ESA standards, and a valid averaging agreement was in place.

A careful legal review is recommended before rejecting or accepting the full 500-hour claim. Ensure to consult with a legal professional and HR director before moving forward. I hope this helps!

-HRInsider Staff

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