Employment standards legislation, such as Ontario’s Employment Standards Act, 2000 (the “ESA“), is designed to set minimum standards which cannot be opted out of, even if the employee agrees. One standard addressed in all employment standards legislation relates to the maximum hours that an employee can be required to work on a daily and weekly basis.
In this blog post, we provide an overview of the rules in place under the ESA in regard to this topic, and how employers and employees can get creative when business needs exceed the standard “9-5”.
Please note that this post focuses on the law in Ontario; the rules with respect to extra hours in other jurisdictions may vary.
Daily and Weekly Maximum Hours of Work
The ESA establishes both a daily and weekly maximum on hours of work:
- Daily: An employer may not require an employee to work more than eight hours in a day or the number of hours in an established regular workday, if it is longer than eight hours.
- Weekly: An employer may not require an employee to work more than 48 hours in a work week.
Notably, the ESA does contemplate that an employer may set a regular work day that is longer than eight hours (e.g. a 10 or 12 hour shift) and require the employee to work these hours, provided that the weekly maximum is still not exceeded. Another option available for employers is to ask employees to agree to an Excess Hours of Work Agreement.
Excess Hours of Work Agreements
An employer and an employee can agree electronically or in writing that the employee will work more than the daily or weekly maximums, as described above. Specifically, employers can ask employees to agree that they will work up to a specified number of hours in a day or week in excess of the limits noted in the ESA. Previously, employers were required to apply to the Director of Employment Standards for approval of excess weekly hours, but this is no longer the case.
It is important to note that an Excess Hours of Work Agreement will only be valid if, prior to making the agreement, the employer provides the employee with the most recent information sheet for employees about hours of work and overtime pay. The agreement must also include a statement in which the employee acknowledges receipt of the information sheet.
An employee cannot be required to sign an Excess Hours of Work Agreement. Further, in most cases an employee can cancel an Excess Hours of Work Agreement by providing the employer with two weeks’ notice in writing or electronically. Penalizing an employee for refusing to sign an Excess Hours of Work Agreement or refusing to work in excess of the daily and weekly maximums is reprisal under the ESA, and may give rise to various remedies, up to and including reinstatement.
Limits on Excess Hours
Even with an Excess Hours of Work Agreement, there are limits on how many hours an employee can be required to work.
The ESA requires an employer to provide an employee with at least 11 hours free from work each day. Note that this rule does not apply to employees who are on call and called in to work during a period when they would not normally be working. This requirement cannot be altered by an electronic or written agreement between the employer and employee.
An employer must also typically provide an employee with 8 hours of time off between shifts, unless the total time on both shifts is not more than 13 hours or the employee agrees otherwise. This can be included as a term of an Excess Hours of Work Agreement.
Employees must receive at least 24 consecutive hours off work in each work week, or 48 consecutive hours off work in every period of two consecutive work weeks.
Compensation for Excess Hours
An employee must be paid for all time spent working. Note that for purposes of the ESA, time spent by an employee “on-call” is not considered work, unless the employee actually performs work during this time.
When requiring employees to work excess hours, employers should keep in mind that most employees will become entitled to overtime pay after working 44 hours in a week. An Excess Hours of Work Agreement does not relieve an employer of the obligation to provide overtime pay to an employee. The employer will need to keep track of the employee’s hours and ensure they are properly compensated for all hours worked. Employers may wish to consider having employees agree to an Averaging Agreement, which means that an employee’s hours of work will be averaged over a 2-4 week period for purposes of determining their entitlement to overtime pay, which can help to reduce overtime costs.
Exceptional Circumstances
An employer may require an employee to work in excess of the daily or weekly hours, or during a required period free from work, in exceptional circumstances, such as in an emergency. This can include natural disasters, fire and floods, or major equipment failure or breakdown requiring urgent repairs. Exceptional circumstances do not include situations such as rush orders being filled, inventory taking, another employee not showing up for work, seasonal busy periods, routine maintenance or slow downs in shipping or receiving due to poor weather.
Where an exceptional circumstance is present, an employee can require the employee to work excess hours only so far as is necessary to avoid serious interference with the ordinary operations of the business.
TL;DR
The ESA prescribes daily and weekly maximum hours of work for employees. Employers cannot require most employees to work in excess of these hours unless the employee agrees to an Excess Hours of Work Agreement and receives a copy of the Ministry of Labour’s hours of work and overtime poster. Even where an employee agrees to work excess hours, they are still entitled to time off each day and every week. Employees must be compensated for all time worked, including overtime pay if they work in excess of 44 hours in a week.
If you have specific questions about the hours of work requirements, or need help implementing or reviewing an Excess Hours of Work Agreement, please contact us.
