Overtime pay

How BC law treats it

Under the Employment Standards Act, RSBC 1996, c 113, s. 40, an employee who works more than 8 hours in a day must be paid 1.5 times the regular wage for hours over 8 and double the regular wage for hours over 12. An employee who works more than 40 hours in a week is paid 1.5 times for the hours over 40, but hours already paid at daily overtime rates are not counted twice. Employers and employees can change how overtime is calculated through an averaging agreement under s. 37, which averages hours over a period of up to four weeks. An employee can also ask, in writing, to bank overtime wages under s. 42 and take paid time off later instead of overtime pay. Overtime cannot be waived by an employment contract, because the Act's minimum standards cannot be contracted out of. The Employment Standards Regulation, BC Reg 396/95 excludes managers from the overtime rules and sets special rules or exclusions for some occupations, such as certain professionals and high technology professionals. Employers in federally regulated industries, such as banking, airlines and interprovincial trucking, follow the Canada Labour Code instead. Employees can complain to the Employment Standards Branch, which can order payment of unpaid wages. Recovery under the Act generally reaches back 12 months before the complaint or termination (s. 80).

What it means for your business

Unpaid overtime is a common source of Employment Standards complaints and audits. Labelling someone a "manager" or paying a salary does not remove overtime entitlement unless the person truly fits the exclusion. Employers should track hours, use written averaging agreements where schedules vary, and review job titles against the Regulation. Founders hiring early staff on long-hours schedules should budget for overtime or structure work to stay within limits. Example: A Kelowna construction supply company has a driver work 13 hours one day. The driver is owed regular wages for 8 hours, time and a half for 4 hours, and double time for the last hour.

Risks and common mistakes

Assuming salaried employees are not entitled to overtime. Calling a supervisor a manager when the person does not meet the Regulation's definition. Omitting double time for hours over 12 in a day. Using an averaging agreement that is not in writing or does not meet the Act's requirements. Including a clause in an employment contract that purports to waive overtime.