By virtue of s. 22(2.2), agreements that were entered into under s. 22(2) or O Reg 285/01, s. 30 as they read on February 28, 2005 under the former Employment Standards Act that are still valid are treated as if they are agreements made under the current s. 22(2)(a) (new agreements), thereby avoiding the need for employers to enter into another agreement with employees if they wished to average hours after February 28, 2005. Because the subsection states that the employee is to be compensated for overtime hours with one and one-half hours of paid time off work for each hour of overtime worked instead of overtime pay, it is the Program's position that the employee is entitled to the time off at the rate the employee is earning when the employee takes the time off as opposed to the rate they were earning when the overtime was worked. This is particularly important given that s.22(6) provides that averaging agreements may not be revoked before they expire, unless the parties agree otherwise in writing. Only those hours during which such employees are directly responsible for the public truck are included when calculating the entitlement to overtime O Reg 285/01, s.18(4). Because this employee was paid straight time for each hour worked, including overtime hours, the employee has already received $120 (6 overtime hours x $20.00) in respect of overtime. Employee B owes the employer the regular wages that she was paid for work that she did not perform in week one. Conversely, an approval was issued for an averaging period of four weeks that applies to a particular class of employees. These informal arrangements were neither encouraged nor discouraged, and there was no advance notification to the employer. The wage and hour team at Franczek PC created this blog to provide timely, practical insights on wage and hour law to employers. This is not a valid defence to an employees claim for overtime pay. Can we do that? A non-exempt employee is employed by the same employer in two jobs, one as a receptionist at $10 per hour and the other as a client services representative . The letter made clear, however, that employers can't design this pay scheme as a way to shortchange employees or evade wage-law regulations. in the case of service under clause (3)(a), on the day shown on a receipt or acknowledgment provided to the employer by the Director or his or her representative; in the case of service under clause (3)(b), on the day shown in the verification; in the case of service under clause (3)(c), on the day on which the electronic or telephonic transmission is made, subject to subsection (5). The employee works 50 hours in a work week and is paid $20.00 per hour. The intent of Part VIII (Overtime Pay) is to compensate an employee for the additional time he or she must work when overtime is required and to provide workplace parties with the ability to negotiate more flexible work schedules. if the employee is represented by a trade union and a collective agreement applies to the employee, the day a subsequent collective agreement that applies to the employee comes into operation, or. The employee is paid a flat book rate of $16.00 per hour to perform tune-ups that according to the book will take 1.5 hours to complete. For the purposes of calculating overtime under the FLSA, The employee works 48 hours in the first week, 44 hours in the second week, 40 hours in the third week and 50 hours in the fourth week. Employees who work for the owner or operator of a hotel, motel, tourist resort, restaurant or tavern for 24 weeks or less in a calendar year and who are provided with room and board are entitled to the overtime premium for each hour worked in excess of 50 hours in a work week O Reg 285/01, s.14. The employer can average the employee's hours only over a period of three weeks, not over the four-week maximum as set out in subsection 22(2)(b). 22(6) No averaging agreement referred to in this section may be revoked before it expires unless the employer and the employee agree to revoke it. It establishes how agreements to average hours that were entered into under the provisions of the former Employment Standards Act or under the Employment Standards Act, 2000 before the amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004, SO 2004, c 21 came into force that have not expired are to be treated. the overtime pay for each hour referred to in clause (a) is one and one-half times the regular rate that applies to the work performed in that hour. The mechanic will be paid $64 whether the job takes three or five hours to complete. The applicant employee brought an action against his employer for, amongst other things, failure to pay his full entitlements to overtime under the enterprise agreements. The first determination that must be made is whether the person claiming overtime pay is covered by Part VIII Overtime Pay. If the employee is engaged in any of the following, O Reg 285/01 should be consulted as a higher overtime threshold may apply: Section 22(9) provides that when an employee performs work that is exempt from this Part and work that is not, the employee is entitled to overtime pay in respect of all of the overtime work performed in a work week so long as the non-exempt work in the work week constitutes 50% or more of the time the employee spent working. 22.1(4) Service under subsection (3) shall be deemed to be effected. This limit applies even if the employee agreed to average hours over periods longer than two weeks and/or the application asks for an approval to average hours over periods longer than two weeks. The employer would add one-half of this amount ($7.40) for each of the 10 . One employee in that class agreed to an averaging period of only two weeks. You may choose to give the employee a bonus based on results achieved, not hours worked, as an alternative to overtime and as an additional motivator. It is program policy that the employer shall apply the proportion of each overtime rate to the averaged overtime hours. For the week, the employee would be paid $716.70 ($200 [20 x $10] + $400 [20 x $20] + $116.70 [5 x $23.34]). 22(8) If the employment of an employee ends before the paid time off is taken under s.22(7), the employer shall pay the employee overtime pay for the overtime hours that were worked in accordance with ESA Part V, s.11(5). In the TikTok video uploaded by podcast host Jasmine Milan, D'Shonda said, 'I don't believe in the whole two-week notice thing.'. Employees who work multiple jobs in a single workweek are entitled to overtime pay if they work more than 40 hours per week. Accordingly, where an employer already has an approval from the Director of Employment Standards, the employer may begin averaging an employees hours of work for overtime pay purposes immediately after the employee provides their written agreement to do so if that employee falls within the class of employees set out in the approval immediately (assuming that all of the requirements for a valid agreement are met) the employer will not be required to apply for another approval. Certain residential employees must receive overtime pay at the rate of 1 times their regular rate of pay for all hours worked over 44 in a workweek. Which overtime premium(s) applies? Jun 1, 2016. Prior to its revocation, O Reg 285/01, s.30 allowed an employer and employee to agree to average hours of work over a period of more than four weeks for the purpose of determining the employees entitlement to overtime pay if the Director approved the agreement. An employee works making oven mitts and is paid $2.00 per pair. For many years I had two jobs at a time. Here is the answer. Yes. There are restrictions placed on when the expiry date can be. With respect to travel time it is Program policy that: Before an employees overtime rate or rates in respect of the overtime hours worked in a given work week can be calculated, the employees regular rate or rates (if the employee is paid more than one hourly rate for work performed for the employer) for the work week(s) in question must be determined. Job A work: 12 hours X $15.00 per hour X 1.5 = $270, Job B work: 4 hours X $20.00 per hour X 1.5 = $120, Employee works 44 non-overtime hours in the work week, Employee works 6 hours of overtime in the work week, Regular rate = (total earnings in work week divided by non-overtime hours) = $1200 divided by 44 = $27.27, Overtime rate is $27.27 (regular rate) x 1.5 = $40.91, Overtime pay entitlement = (overtime rate x overtime hours in a workweek) = $40.91 x 6 = $245.46, Employee works 44 non-overtime hours that work week, Employee works 16 hours of overtime that work week, Regular rate = total earnings in the work week divided by non-overtime hours = $750.00 divided by 44 = $17.05, Overtime rate is $17.05 (regular rate) x 1.5 = $25.58, Overtime pay entitlement = overtime rate x overtime hours in the work week, Employee works 44 non-overtime hours in work week, Employee works 2 overtime hours in work week, Employees regular rate is $768 divided by 44 non-overtime hours = $17.45, Employees overtime rate is $17.45 x 1.5 = $26.18, Employees overtime entitlement is 2 hours x $26.18 = $52.36, Employee work 6 overtime hours in the work week, Employees regular rate is $600 divided by 44 non-overtime hours = $13.64, Employees overtime rate is $13.64 x 1.5 = $20.46, Employees overtime entitlement is 6 hours x $20.46 = $122.76, Employee works 16 overtime hours in work week, Employees regular rate for the work week is $1000 divided by 44 non-overtime hours = $22.73, Employees overtime rate for the work week is $22.73 x 1.5 = $34.10, the employee has made an agreement with the employer that his or her hours of work may be averaged over periods of a specified number of weeks; and. For the purposes of calculating overtime . (5) Service shall be deemed to be effected on the next day on which the Directors office is not closed, if the electronic or telephonic transmission is made. The next issue for determination is whether the 44-hour threshold applies. However, it's a different story if the employee's primary duty is his nonexempt, hourly work. 'In Lacson, the applicant employee held the job of a Postal Delivery Officer that involved sorting mail and other duties from 6am to 9am at the Collingwood Post Office, and another job of Postal Sorting Officer that involved unloading and sorting bulk mail at the Melbourne Parcel Facility in Sunshine from 3:30pm to 10pm. Because these employees are not paid by the hour, their regular rate must be determined by applying clause (b) of the definition of regular rate, by dividing all earned wages in the work week by the non-overtime hours worked. A. Rather, he appears to have made those choices on the basis-correctly as this Court and the Federal Circuit Court have found-that he had two separate employment arrangements with Australia Post, each one regulated separately by the enterprise agreements., KROEGER v MORNINGTON PENINSULA SHIRE COUNCIL [2019] FCCA 2313 (22 August 2019) (Judge Blake). Overtime threshold s. 22(1); same, two or more regular rates s. 22(1.1) 22(1) Subject to subsection (1.1), an employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each work week or, if another threshold is prescribed, that prescribed threshold. The paid time off work is taken within three months of the work week in which the overtime was earned or, with the employees written agreement within 12 months of that work week. See the discussion in s. 22(8) below. The standard time and one-half premium or a higher premium established by contract? An averaging agreement will not be binding if it is not entered into voluntarily by both parties. Robert Hoffman's response:Your situation raises several important questions: First, let's review the FLSA. Typically, if employees work two different jobs with different hourly rates, federal wage law would require you to pay overtime based on a weighted average of the two hourly rates. Such employers are each independently liable for minimum wage and overtime pay regulations under the FLSA and potentially workers' compensation insurance under state law. Generally, the Directors office is closed on Saturdays, Sundays, the nine public holidays under the ESA 2000, as well as Easter Monday, the August Civic Holiday, and Remembrance Day. Note that ss. If you read my posts on my law blog page, you will see that my experience speaks for itself. See ESA Part V, s.11 for details. In this case, the employer owes the employee an additional $52.36 for overtime pay. Where there is no valid averaging agreement between the employer and a particular employee, it would not be lawful for the employer to average that employees hours of work, even if the employer has an approval that applies to a class that includes that employee. Calculation of hours worked for employees in highway transport paid by mileage. 22(5) An averaging agreement made before this Act comes into force that was approved by the Director under the Employment Standards Act is valid for the purposes of subsection (2) until. Job descriptions, performance objectives, and company goals are one way to determine the proportional emphasis that should be given to specific job tasks. The first opinion letter dealt with situations in which a nonexempt employee is paid two different hourly wages when he or she works at two separate jobs for the same employer during a workweek. The U.S. Department of Labor recently issued an opinion letter on how to properly calculate overtime pay for employees working two different jobs at two different rates of pay . 22(3) Subject to subsections (3.1) and (3.2), an averaging agreement is not valid unless it provides for a start date and an expiry date. Statements such as "up to 4 weeks" are not sufficient. Averaging agreements can only be revoked by the parties if the employer and the employee agree to do so in writing, in accordance with ESA Part 1, s.1(3). The employee has also agreed in writing to work excess hours. The most important of these are salary level, job responsibility and complexity, and the autonomy and discretion inherent to the specific position. That employee will only be entitled to an additional .5 of their regular rate in respect of all overtime hours worked in the work week. Sometimes two PD and sometimes a PT with a PD. This is a transitional provision. Exempt employees need not be paid overtime if they work in excess of 40 hours in a week. Before an employer is permitted to average an employee's hours, the employee must have entered into an agreement with the employer allowing his or her hours to be averaged over periods of a specified number of weeks. 22(5) Any averaging agreement that was made before the day the Restoring Ontarios Competitiveness Act, 2019 received Royal Assent in accordance with this section, as it read at the time, and that was approved by the Director under section 22.1, as it read at the time, is deemed to have met the requirements set out in subsections (2), (3), (3.1) and (3.2) and continues to be valid until the earlier of. Some factors that may be considered when the Director is asked to approve an averaging application under s.22.1 include: Please refer to Delegation of Powers for general principles of how the Director exercises their discretion under the ESA 2000. The employee and the employer agree, in writing to compensate the employee with paid time off at a rate of 1.5 hours off work for every hour of overtime worked, rather than pay the employee overtime pay; and. the number of employees affected by the contraventions), the monetary amounts involved, and the Part of the. If an employee wishes to work two separate and distinct positions for a public employer, one exempt and the other nonexempt, can the employer treat the positions separately and therefore pay the employee for each position separately? They did 12 brake-relines which resulted in a flat rate payment for 48 hours (each re-line job is rated as taking 4 hours) for a total payment of $768. Exempt employees are those who satisfy the FLSA's salary basis test and either the executive, administrative or professional duties test. Further, the two or more weeks within each averaging period must be consecutive. It is essential in a flat rate system that the employers records reflect both the flat rate paid and the actual hours worked: it is the actual hours worked that must be used to calculate the employees regular rate and overtime entitlements. any current or past contraventions of this Act or the regulations on the part of the employer; This includes situations where the Director, in the course of considering an application, discovers that the employer was found to be in contravention of the, The number of contraventions, the extent of the contraventions (e.g. The employee's total earnings for the workweek from both jobs are added and then divided by the total number of hours worked at both jobs to determine the regular hourly rate, which may then be used to calculate the overtime premium (i.e. As you can see, these situations can be very confusing and hard to interpret! However, the hours that the employee is not directly responsible for the truck are not included for overtime purposes. Example: A three-week averaging arrangement is in place and: An issue that may arise in the context of an averaging agreement made for the purpose of accommodating shift exchanges is how to handle circumstances in which the employment of an employee who has been involved in a shift exchange ends before the exchange is complete. If an employer has not kept accurate records of the hours worked by an employee, or if the employers records are challenged by the employee, the employment standards officer will determine the employees hours of work on the basis of the best evidence available. Section 22(3) provides that, subject to ss. Note that even if an employer has averaging agreements and an averaging approval, if employees will be working hours in excess of the daily or weekly limits the employer must also obtain excess hours agreements from the employees. Where employees are represented by a trade union. Key Takeaways. The key issue in the proceeding was whether the respondent employer was correct to treat the two jobs as separate and distinct for the purpose of calculating overtime, or whether the hours worked in the two jobs were to be calculated cumulatively. However, the employee actually worked 50 hours in that work week. 22.1(16) For greater certainty, nothing in this section prevents an employer from applying for an approval after an earlier approval expires or is revoked or after an application is refused. FLSA, but are still entitled to overtime under the New York State Labor Law. 22(5) below for the rules re: agreements that were made prior to April 3, 2019. The general overtime premium and threshold apply. An employee cannot agree to work overtime hours at a rate lower than one and one-half times their regular rate. See the discussion of s.22.1(7) above. It does not appear he made those choices believing, or having it represented to him, that they would be treated as one job and he should secure the considerable additional sums of money he is now seeking. In a particular work week, the employee works 60 hours to make 300 pairs of mitts and is paid $600.00. The purpose of this provision is to preclude perpetual averaging agreements. the employees hours of work, pending the approval, are averaged over separate, non-overlapping, contiguous periods of not more than two consecutive weeks. the paid time off work is taken within three months of the work week in which the overtime was earned or, with the employees agreement, within 12 months of that work week. The approvals that expire are those that were granted pursuant to O Reg 285/01, s.30, which was subsequently revoked. It provides that averaging will be lawful only if the averaging period does not exceed the number of weeks specified in the employees agreement or the number of weeks specified in the Directors approval, whichever is less. 22.1(1) An employer may apply to the Director for an approval permitting the employer to average an employees hours of work for the purpose of determining the employees entitlement, if any, to overtime pay. Therefore, they entitled to receive an additional $125.46: $245.46 overtime entitlement minus $120 of overtime already paid, in respect of overtime for the work week in question. For example, if the employee gets 4 hours of overtime pursuant to the 2 week averaging agreement and the employee worked 25% of the overtime in the 2 week period at Job A and 75% of the overtime at Job B, this employee would get 1 hour of overtime at the Job As overtime rate and 3 hours of the overtime rate at Job B. O Reg 285/01 varies the overtime threshold for certain employees. The burden of proof rests with the employer who asserts the exemption. This factor could include whether the health and safety of employees covered by the application may be put at risk, as well the past health and safety record of the employer. The overtime premium of one and one-half times the regular rate is payable for all hours worked in excess of 44 in a work week, unless a higher overtime rate applies by virtue of contract or a higher threshold applies by virtue of regulation. In that case, the employee has two regular rates and as a result, s.22(1.1) applies to determine the overtime pay entitlement. When employees work for two different companies owned by one employer (called joint employment), they are still entitled to overtime when their clocked hours at both companies exceed 40 in a week (or 8 in a day in some states). However, if you determine that the employee is properly classified as nonexempt and eligible for overtime compensation and is working two jobs during the same workweek, overtime compensation (after 40 hours of work) can be calculated in two ways: A refreshed look at leadership from the desk of CEO and chief content officer Stephanie Mehta, This site is protected by reCAPTCHA and the Google. Therefore, the balance owing in respect of overtime pay for the work week in question is $390 $260 = $130. An employer cannot satisfy that obligation or circumvent payment for overtime by raising any of the following defences: In Philips Auto Sales and Repair Inc. v Bonneville (October 30, 1984), ESC 1726 (Betcherman), the referee affirmed that even in the event that the employer did not authorize its employees to work overtime, they are still entitled to receive the overtime pay if they exceed the overtime threshold. On February 28, 2005 the relevant provisions read as follows: Subject to the regulations, if the employee and the employer agree to do so, the employees hours of work may be averaged over separate, non-overlapping, contiguous periods of not more than four consecutive weeks each, for the purpose of determining the employees entitlement, if any, to overtime pay. In Joseph Dobi Painting v Szekely and Szekely (May 28, 1980), ESC 799 (Adamson), the referee stated: "[t]he law is quite clear with respect to overtime work. The approval applies to: Section 22.1(9) provides that all of the employers employees can be a specified class. The hospital I work for used to allow people to work an additional job. If an employee does not agree to the averaging of their overtime hours, the employer must pay the employee overtime according to s. 22(1), or ensure that the employee does not work overtime (that is, hours in excess of 44 hours per week or other applicable threshold). An issue arises as to how this requirement applies where the approval is issued to an employer whose employees are assigned to work in a clients workplace, for example, where the employer is a temporary help agency, security company, food service provider, or cleaning company. 22.2(2) The Director may exercise a power conferred on the Director under section 22.1 even if he or she has delegated it to a person under subsection (1). The terms of the averaging agreement determine which of the bargaining unit employees are bound by it. The general overtime premium and threshold apply. That second company shared the same space, staff and management as the first company. For example: Is there a lower threshold for overtime pay than what is required in the. A higher threshold may be prescribed by O Reg 285/01. This section was not repealed when amendments made by the Employment Standards Amendment Act (Hours of Work and Other Matters), 2004, came into effect on March 1, 2005, because it is possible that some agreements that predate the ESA 2000 are still in effect. Thus, such employees are considered by the Program to be entitled to overtime pay for all hours worked in excess of the lower threshold provided that at least 50% of their work week is spent performing work that attracts the lower threshold. This section requires the Director to provide notice to the employer if an application for approval has been refused. 22.2(3) An individual authorized by the Director under subsection (1) shall follow any policies established by the Director under subsection 88(2). However please note that if your employer hired you for the second job, your employer would be legally obliged to combine the hours worked at both jobs and to pay you at OT rates for any hours worked above 40 in any given week. is not at the place of employment and is waiting or holding himself or herself ready for call to work. It provides that the maximum period over which an employees hour of work can be averaged pending the disposal of the application is two weeks. ROCA removed the requirement for the approval of the Director and limited the length of averaging agreements to four weeks. The overtime provisions are also intended to discourage employers from requiring overtime by imposing an economic cost on them when overtime is demanded. In the non-unionized context the expiry date cannot be later than two years from the date the averaging agreement takes effect.