THE QUESTION
I work as a junior-level associate in the communications and public relations industry. Working more than eight hours a day has become common since the pandemic began, especially now that working from home has become the “norm.” I’ve spoken to managers and HR about the issue of unpaid hours knowing that Ontario’s Employment Standards Act (ESA) covers salaried employees.
The most recent answer I got is that my industry falls in a grey area of the labour law, which allows them to not need an overtime policy or follow the Ontario overtime laws since we’re a “specialized industry.” I understood this to be related to doctors and nurses and such, not communications professionals. Can PR companies avoid paying overtime since there are times when we have to work irregular hours and it’s expected of us? There’s no overtime exemption clause in our contracts such that we would agree to this.
THE FIRST ANSWER
Randy Ai, principal lawyer, Randy Ai Law Office – Toronto Employment Lawyers, Toronto
Thank you for your question, and I am sorry to hear that you find yourself in this situation. I respectfully disagree with your employer that PR companies are exempt from paying overtime to their employees. Moreover, I respectfully disagree with your employer that the PR industry somehow falls into some type of “grey area” in relation to employment law.
Under the regulations of the ESA, certain professions and types of workers are excluded from overtime entitlements (including lawyers and doctors, for example). As well, managers are not entitled to overtime payments. So if you are performing managerial duties, then you will not be entitled to overtime pay.
That being said, there is nothing in the ESA that exempts the PR industry or a PR company in general from paying overtime to employees. I am deeply concerned that your employer may be engaging in conduct that is in violation of the ESA. I would strongly advise that you keep detailed logs of your overtime hours, as you may have a claim against your employer. Your legal options include filing a complaint with the Ontario Ministry of Labour and/or commencing legal action against your employer through the court system. Please contact an employment lawyer if you require more comprehensive legal advice.
THE SECOND ANSWER
Balraj K. Dosanjh, employment lawyer, Cavalluzzo LLP, Toronto
The general rule under the ESA is that employees working overtime (i.e. if they have worked more than 44 hours in a week) are entitled to be paid at time and a half their regular rate of pay for every hour worked in excess of 44 hours in a week. An employer and employee may agree to compensate overtime hours with time off in lieu of pay if the paid time is taken off within prescribed timelines.
The ESA also permits “averaging agreements” that meet certain requirements. In Ontario, the overtime threshold is triggered on a weekly basis rather than daily, unless your employment contract indicates otherwise. There are certain exceptions and/or special rules with respect to overtime pay for management and supervisory positions and specific industries identified in a regulation to the ESA (such as law, medicine, firefighting and information technology).
Neither the ESA nor its regulations identify communications and public relations as an industry exempt from the overtime rules. Therefore, as a non-managerial communications and public relations professional, you are entitled to receive overtime pay for every hour worked in excess of 44 hours in a week. The fact that you work irregular hours does not disqualify you from the overtime pay. You should also be aware that even if your employment contract attempted to limit your entitlements under the ESA, such a clause would be void and unenforceable because employers and employees cannot contract out of the minimum standards set out in the ESA.
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