Overtime Exceptions Part 2 - Professionals

In our recent blog post, Overtime Entitlements in Ontario, we discussed employees' basic entitlements to overtime in Ontario. As we explained in our post, there are numerous exceptions to the general overtime rules. One of the largest categories of workers excluded from overtime in Ontario is "professional" employees.

The Ontario Employment Standards Act ("ESA") establishes the minimum standards for overtime pay. However, Exemptions, Special Rules and Establishment of Minimum Wage, O Reg 285/01 ("O Reg 285/01") enacted under the ESA, provides that the overtime provisions do not apply to a wide-range of employees who are employed in a professional capacity.

(1) Qualified and Registered Practitioners:

Under s.2 of O Reg 285/01 a person is not entitled to overtime if they are employed:

(a) As a duly qualified practitioner of:

• Architecture
• Law
• Professional engineering
• Public accounting
• Surveying
• Veterinary science

(b) As a duly registered practitioner of:

• Chiropody
• Chiropractic
• Dentistry
• Massage therapy
• Medicine
• Optometry
• Pharmacy
• Physiotherapy
• Psychology

For each of these exemptions, there are two requirements: (i) the employee is "duly qualified" or "duly registered", and (ii) the employee is a "practitioner" of the profession. Both requirements must be met for an employee to be exempt from overtime pay.

(i) Duly Qualified or Duly Registered

To be duly qualified or duly registered the employee must be qualified or registered with the applicable professional legislation. For example, lawyers must be qualified pursuant to the Law Society Act, and dentists must be registered under the Dentistry Act.

The specific provisions of the applicable legislation must be referenced to determine whether an employee is "duly qualified" or "duly registered" for the purposes of the overtime exemption.

(ii) Practitioner

An employee must actually be practicing the profession in order to be exempt for overtime. For example, a registered dentist who is working as a store clerk will not be exempt from overtime pay as they are not practicing the profession of dentistry.

There are specific considerations for determining the "practice" of public accounting. Employers and employees who work in accounting related professions are encouraged to seek legal assistance when determining overtime entitlements.

(2) Information Technology ("IT") Professionals:

S.8 of O Reg 285/01 provides that the overtime pay provisions in the ESA also do not apply to employees who are employed as "information technology professionals". An "information technology professional" is defined as:

"an employee who is primarily engaged in the investigation, analysis, design, development, implementation, operation or management of information systems based on computer and related technologies through the objective application of specialized knowledge and professional judgment."

This exemption applies to employees who exercise professional judgement requiring the application of specialized IT knowledge. For example, IT roles such as Project Manager for a high technology company and 3D Application Specialist have been found to qualify for the exemption, as the employees primarily performed tasks requiring in-depth, specialized knowledge.

On the flipside, the Ontario courts have confirmed that employees who perform administrative IT duties, such as support staff, will not qualify for the exemption. Likewise, employees who perform routine duties using software or technology designed by someone else may not be classified as an information technology professional.

This exemption applies on a case by case basis. To determine whether an employee is an information technology professional, it is necessary to assess the day to day duties performed by the employee and determine whether they primarily perform tasks requiring in-depth specialized knowledge.

(3) Other Professional Exemptions:

Additionally, under s.2 of O Reg 285/01 the following employees are exempt from overtime:

• Duly registered practitioners under the Naturopathy Act 2007
• Teachers as defined under the Teaching Profession Act
• Students in training for certain occupations exempt from overtime (e.g. law students, teachers in training, etc.)
• Commercial fishers
• Salespersons or brokers, as defined in the Real Estate and Business Brokers Act, 2002
• Salesperson, other than a route salesperson, who is entitled to receive all or any part of his or her remuneration as commissions in respect of offers to purchases or sales that (i) relate to goods or services; and (ii) are normally made away from the employer's place of business
• Certain agricultural employees

Stay tuned for Part 3 and Part 4 of this series, where we discuss some of these other exemptions in greater depth. Check out Part 1 of this series to learn about the overtime exemptions for employees who are managers or supervisors.

Key Takeaways:

To determine whether an employee falls under a "professional" exemption to overtime, it is necessary to analyze the actual duties performed by the employee in light of the requirements of the exemption. This should be done on a case by case basis. Given the numerous exemptions, and the differing requirements for each, employers and employees alike are encouraged to seek legal assistance when determining whether their occupation is covered by special overtime rules. Lee Workplace Law would be happy to assist.