Long shifts at a restaurant, extra weekend hours at a warehouse, an office job where "everyone stays late" — many workers in the Greater Toronto Area put in far more than a standard week and never see a cent of overtime. Some are told overtime "doesn't apply" because they are on salary, or because the employer has a policy against it. Often, that is simply wrong. Ontario's Employment Standards Act, 2000 (ESA) sets a minimum overtime entitlement that employers cannot contract out of.
For most employees, overtime starts after 44 hours of work in a work week. Every hour beyond 44 must be paid at one and a half times your regular rate of pay. If you normally earn $25.00 an hour, each overtime hour is worth at least $37.50.
Overtime under the ESA is calculated weekly, not daily. A single 12-hour day does not by itself trigger overtime — unless your employment contract or collective agreement gives you a better, daily overtime rule.
Being paid a salary does not take away your right to overtime. According to the Ontario government's guide to the ESA, a fixed salary covers your hours up to and including 44 a week; hours worked beyond that must be paid at the overtime rate, calculated from your regular rate. The same is generally true for people paid by commission or piece rate.
Job titles do not decide the question either. Calling someone a "manager" does not make them exempt — what matters is the work they actually do.
An employer and employee can agree to average hours over a period of two to four consecutive weeks, so overtime is owed only if the average weekly hours exceed 44. This must be agreed to in writing or electronically — an employer cannot impose it on its own. For non-unionized employees, the agreement must have an expiry date no more than two years after it takes effect, and it cannot be cancelled early unless both sides agree.
You and your employer can also agree, in writing or electronically, that you take paid time off instead of overtime pay. The ratio matters: for every overtime hour, you must receive one and a half hours of paid time off. That time must be taken within three months of the week the overtime was earned — or within 12 months if you agree to that in writing. If your job ends before you use banked time, the employer must pay it out as overtime pay.
Some employees are not entitled to ESA overtime, including:
Some industries also have special rules, including higher overtime thresholds. If you perform mixed duties, you may still qualify: where at least half of your hours are in work that is covered by overtime, you are entitled to it. Exemptions are applied strictly, and employers sometimes claim them when they do not fit.
If you are owed overtime, you can file an employment standards claim online with the Ministry of Labour, Immigration, Training and Skills Development — no lawyer or court fee needed to start. Two important points:
Keep your own records: dates, start and end times, pay stubs, schedules, texts, and emails asking you to stay late. These are often the best evidence of hours worked. And remember that the ESA protects you from reprisal for asking about or asserting your rights.
Unpaid overtime adds up quickly. At WP Legal Professional, we help employees across the Greater Toronto Area understand and enforce their rights under the Employment Standards Act, and we serve clients in English, Cantonese, Mandarin, and Korean. Learn more about our employment standards services.
Act now. Contact us for a confidential consultation before your claim deadline passes.
This article is general information only and is not legal advice. Every case turns on its own facts.
