In BC, the Employment Standards Act regulates the minimum standards that employees are entitled to and that employers must adhere to.
According to the definition under the BC Employment Standards Act, overtime occurs when an employee works more than the standard work hours – typically eight (8) hours per day or forty (40) hours per week.
In the event that an employee works overtime, the employer has a duty to pay them accordingly.
Can Your Employment Contract Terminate If You Refuse to Work Overtime?
While the Employment Standards Act does not explicitly deal with termination due to refusal of overtime work, the general rule is that an employer is entitled to terminate an employment contract as long as they provide you with:
- sufficient notice; and/or
You can access information about the reasonable notice period that you’re entitled to under our discussion about wrongful dismissal here.
So, simply put, there is a possibility that your employer can terminate your employment contract if you refuse to work overtime, as long as the termination is legal.
If employees are not dismissed in a legal manner, this may result in a wrongful dismissal.
How Is Overtime Pay Calculated?
Overtime is calculated and paid at different rates depending on the total numbers worked.
After working eight hours in a day, if the employee continues to work, they must be paid a time-and-a-half (1.5 times) their regular wage rate.
The maximum amount of overtime hours a person can work at a time-and-a-half rate is four hours. In other words, if the employee works between eight hours and twelve hours on any given day, they must be paid 1.5 times their regular wage rate for overtime worked up to four hours.
If the employee works more than four hours overtime (in other words, more than twelve hours in a given day), they must be paid two times their regular pay rate for every hour in excess of four hours overtime.
EXAMPLESally works as an assistant at a corporate firm in BC.
On Wednesday, she ended up having to work more than her standard work hours because there was a major crisis that needed to be resolved.
Sally ended up working a 15-hour workday to help avert the crisis.
So, her employer would have to pay her for the overtime worked. She worked a total of seven hours overtime (15 – 8 = 7 hours)
According to the BC Employment Standards Act, her daily overtime must be calculated as follows:
- for the first four hours (8 hours – 12 hours), Sally must be paid at a time-and-a-half rate of her regular wage; and
- for her last three hours (12 hours – 15 hours), Sally must be paid at double the rate of her regular wage.
Unfortunately, the crisis was not averted on Tuesday, so Sally continued to work overtime for the next week. She logged her overtimes as follows:
|Day of the week||Total Hours Works||Overtime at a time-and-a-half rate||Overtime at a double rate|
So, over the week, Sally would get paid her regular wage plus:
- 15 hours x 1.5 of her regular rate; and
- Six hours x 2 of her regular rate.
Suppose your employee regularly works on a weekend as opposed to extra hours in the week. If that is the case, then employers can calculate the overtime rate according to a weekly rate.
So, if an employee ends up working more than forty (40) hours per week, then the employer will be entitled to pay her overtime in accordance with the extra hours worked. A week runs from Sunday to the following Saturday.
It’s important to take note, however, that if a weekly overtime agreement exists between the employer and employee, it usually means that the employee has agreed to work more than five days per week.
This is because, when calculating weekly overtime, only the first eight hours worked in each day is counted – not more.
So, if your employee works more than eight hours per day as opposed to more than five days per week, then they will need to be paid according to the daily overtime rules. But if they work more than five days a week, then a weekly overtime agreement will be best suited.
An employee who works more than forty (40) hours in a week must be paid at a time-and-a-half rate of their regular rate of pay for the excess hours.
The employee will receive overtime for each week regardless of whether they worked more than eight hours per day.
EXAMPLESuppose Sally’s boss preferred that she worked her normal hours each day and came in on Saturday and Sunday to help take some of the admin load off the managers.
If that were the case, then they would pay her according to the weekly overtime rules.
They reduced her Monday and Tuesday daily hours to make up for not having an entire weekend off work.
She logged her overtimes as follows:
|Day of the week||Total Hours Works||Overtime at a time-and-a-half rate|
Even though Sally did not work more than eight hours in a single day, she did end up working more than 40 hours in a week.
She worked 15 hours across Saturday and Sunday, but some of her hours were reduced on Monday, Tuesday and Friday, which amount to 5 hours less in the week.
So, she ended up only working 10 hours overtime for the entire week (50 – 40 = 10 hours).
Her overtime would be calculated as follows:
- Sally would get paid her regular wage plus 10 hours x 1.5 of her regular rate.
What About Averaging Agreements?
Suppose you regularly work overtime during the week. If that is the case, then your employer may request that you enter into an agreement where they will average the total number of hours of work over a period of time – it could be one week or four weeks.
For example, the averaging agreement could span over two weeks, and the employee must work a total of 80 hours of those two weeks. It could mean that they work a 12-hour shift on one day and a 4-hour shift on another.
In other words, that employee can work a varying amount of hours on different days, as long as it ends up being 80 hours over the two weeks.
For an averaging agreement to be enforceable, it must:
- be contained in a written document;
- specify the time period over which the hours will be averaged (i.e. is it two or four weeks?); and
- set a shift schedule that details which days require certain hours (for example, on Monday, they will work a 10-hour shift, on Tuesday they will work an 8-hour shift, and on Wednesday they will work a 12-hour shift etc.)
If, however, the employee ends up working more than the 80 hours per two weeks covered by the agreement, they must be paid overtime.
The same daily and weekly overtime rules apply as above.
Overtime can be a complex part of BC employment laws and is often overlooked by employers or misunderstood by employees.
If you’re unsure whether or not you should be receiving an overtime rate and your employer is not giving you the correct guidance, you may want to consider speaking to an employment lawyer.
Should you have any further questions regarding overtime and overtime rates or if you are seeking assistance from our employment lawyers in a situation where you are not receiving sufficient overtime pay, please consider speaking to Zoe about your legal options.