If you have employees in Ontario who work more than 48 hours per week, the Employment Standards Act (“ESA”) requires you to obtain an Excess Hours authorization from the Ontario Ministry of Labour, unless certain exemptions apply.
The ESA generally places two limits on working hours: 8 hours per day and 48 hours per week. By way of agreement between the employee and employer, the 8 hours per day can be altered. In order to exceed the 48 hours per week, an employer must follow a specific process to obtain an Excess Hours authorization from the Minister of Labour
If an approval is granted by the Ministry it is granted for three years, unless the number of hours per week exceeds 60, in which case the approval is only for one year.
There are numerous industries and professions which are exempt from these rules, including those whose work is supervisory or managerial in nature, most professionals, student professionals and information technology professionals. A complete list can be found in Regulation 285.
To be on-side with the legislation an application must be filed in advance of the excess hours being worked. It must be filed in accordance with the directions which can be found here:
The ESA allows for the excess hours to begin to be worked if approval has not already been given (and the employer has not been advised that it will NOT be given) 30 days after the application has been filed. The application depends upon a written agreement between the employee and employer and it must be entered into voluntarily on the part of the employee. The employee (or class of employees which the exemption will apply to) must be provided with a copy of the Employee Rights Document produced by the Ministry BEFORE they enter into the agreement. It can be found here: http://www.labour.gov.on.ca/english/es/pubs/hours/infosheet.php
The employees must be given sufficient time to review the information booklet and consider the application before they sign the Agreement. The application for the excess hours must be displayed in the workplace.
Section 19 of the ESA does provide for excess hours under exceptional circumstances in the case of emergencies or unforeseen circumstances. This provision can not be relied upon to regularly exceed the maximum hours.
Overtime Pay and other considerations:
It is important to also consider whether overtime pay obligations, which initiate after 44 hours per week, have been met. Even if an employee is on salary, the ESA requires that there be a regular pay and an overtime pay calculation if more than 44 hours are being worked per week. An approval for excess hours does not modify this requirement at all. If an application is made to exceed 48 hours of work per week the Ministry will likely canvass this issue with the employer before granting the exemption.
An employer must also comply with the ESA requirements for time off between work days and shifts. An employer must also ensure that they comply with the requirement for no employee to work more than 5 hours before they receive at least a 30 minute break free from work.
Finally, no change should be made to hours of work without a revision to the employment contract. Any revision to the contract must be accompanied by adequate consideration to ensure that the new contract will be binding.
As always, consulting an employment lawyer is strongly advised before making these sorts of changes.