Overtime Exceptions Part 3 - Industries with Special Rules - Healthcare, Hospitality, Construction, and Transportation

In our recent blog post, Overtime Entitlements in Ontario, we discussed employees' basic entitlements to overtime as outlined in the Ontario Employment Standards Act ("ESA") . As we explained in our post, there are numerous exceptions to the general overtime rules.

A variety of industries in Ontario have special rules relating to overtime entitlements. In this blog post we explore the special rules applicable to the following industries: EMS, healthcare and health professionals, hospitality services and sales, construction, and transportation.

Stay tuned for Part 4 of this series where we discuss the exceptions applicable to other industries, including agriculture, household, landscape and building services, government employees, and students, amongst others.

(1) EMS, Healthcare and Health Professionals

There are a number of special employment rules that apply to employees who work in the emergency services and health care industries. Notably, many employees in this industry are not entitled to overtime pay under the ESA. For example, the following employees are not entitled to overtime pay:

• Ambulance drivers, driver's helpers and first aid attendants on an ambulance
• Chiropodists and chiropody students
• Chiropractors and chiropractor students
• Dentists and dentistry students
• Firefighters
• Massage therapists and massage therapy students
• Naturopaths and naturopathy students
• Optometrists and optometry students
• Pharmacists and pharmacy students
• Physicians, surgeons and medical students
• Physiotherapists and physiotherapy students
• Psychologists and psychology students
• Veterinarians and veterinary students

Residential care workers are also not entitled to overtime pay under the ESA. However, they may be entitled to extra compensation for hours worked in excess of 12 hour in a day if they have accurate records of the hours worked and they provide those records to the employer before the end of the subsequent pay period.

(2) Hospitality Services and Sales

Hospitality Industry Employees:

Generally, employees who work in the hospitality industry, including employees at a hotel, motel, tourist resort, restaurant or tavern, are entitled to overtime pay when they work in excess of 44 hours per week.

However, the overtime threshold is increased to 50 hours per week if:

• The employee is provided with room and board;
• The employee works no more than 24 weeks in a year; and
• The employer is the owner or operator of the hotel, motel, tourist resort, restaurant or tavern.

Salespersons:

Employees who work in sales are normally entitled to overtime pay. There is a limited exception, however. An employee is not entitled to overtime pay if they work as a salesperson and all of the following apply:

• Paid partially or fully by commission;
• Not a route salesperson; and
• Makes sales away from the employer's office.

Real Estate Salesperson and Broker:

Real estate salespersons and brokers are not entitled to overtime pay.

(3) Construction

Road Construction and Maintenance:

Employees who work on the construction or maintenance of streets, highways and parking lots are entitled to overtime pay for each hour worked over 55 hours in a week. If an employee works less than 55 hours a week, the employer can carry over the difference between the number of hours worked and the 55-hour overtime threshold to increase the next week's overtime threshold. For example, if an employee work 50 hours one week, the extra 5 hours can be carried over to the next week to increase the overtime threshold to 60 hours. The maximum hours that can be carried over is 22 hours.

Employees who work on the construction or maintenance of road structures like bridges or tunnels are entitled to overtime pay for each worked over 50 hours a week. If an employee works less than 50 hours a week, the employer can carry over the difference between the number of hours worked and the 50-hour overtime threshold to increase the next week's overtime threshold. The maximum hours that can be carried over is 22 hours.

Sewer and Watermain Construction:

Employees who work in sewer and water main construction or sewer and watermain construction site guarding are entitled to overtime pay for each hour worked over 50 hours in a work week.

The above does not apply to employees working in sewer and watermain maintenance.

Swimming Pool Installation and Maintenance:

Employees who work in swimming pool installation and maintenance are not entitled to overtime pay.

(4) Transportation

Local Cartage Drivers and Driver's Helpers:

Employees who work as a local cartage driver, transporting goods for hire within a municipality, or a driver's helper for a local cartage driver are entitled to overtime pay for each hour worked over 50 hours in a work week.

Highway Transport Truck Drivers:

Highway transport truck drivers are entitled to overtime pay for each hour worked in excess of 60 hours in a work week. In calculating work hours, only the hours in which the employee is directly responsible for the truck are included.

Tax-Cab Drivers:

Taxi-cab drivers are not entitled to overtime pay.

Key Takeaways:

Many employees in Ontario have jobs that are overtime exempt. Other employees work in jobs that have overtime thresholds of more than 44 hours per week. Given the wide range of exceptions, it is important that employers and employees understand the overtime rules that apply to their industry and occupation. Lee Workplace Law would be happy to answer any further questions you may have about your overtime entitlements.