Overtime Agreements

[BlackArcher101]

Anybody have experience with these? My employer is implementing one and it feels like I'm going to be getting royally screwed over.

A little background info:
- Office worker
- 100% Salary - Bi-Weekly
- Not part of OT exemptions
- Have been paid OT before based on anything over 8 hours per day (@ regular pay rate, not 1.5 (with my agreement)
- Work week is regular 40 hours (8-5, 5 days)
- No previous written overtime agreements in place

Now, the new agreement has the following:
- Anything over 48 hours per week will be given as time off (at regular time, not 1.5)
- If time off not used after 3 months, it is paid out at regular pay.

From my previous battles obtaining my OT earned, I've had to bring to their attention that according to the employment standards, OT pay is calculated two ways. The ways being anything over 8 hours/day and anything over 44 hours/week. The higher of those two calculations is the OT paid. This agreement I'm to sign effectively negates the 8 hrs/day calculation and basically nullifies my OT, giving the employer a free day and a 6 day work week while only paying 5.

Now, my question is... do overtime agreements trump anything that the employments standards state? I know in tenant standards, the standard itself will override a lease agreement if there is a disagreement between the two. According to the website: http://employment.alberta.ca/cps/rde....xsl/1470.html it states that time must still be paid at 1.5, not straight across.

I'm a little peeved because of this.

[Ozy_Flame]

Originally Posted by BlackArcher101

Now, my question is... do overtime agreements trump anything that the employments standards state? I know in tenant standards, the standard itself will override a lease agreement if there is a disagreement between the two. According to the website: http://employment.alberta.ca/cps/rde....xsl/1470.html it states that time must still be paid at 1.5, not straight across.

I'm a little peeved because of this.

Absolutely not. Overtime laws must comply with employment standards. It is the responsibility of the employer to be aware of such laws (as well as the employee), and to negotiate within those boundaries. They have to pay you for every extra hour you've worked that you didn't voluntarily agree to.

[fredr123]

You don't have to answer this, but I'm curious what industry you work in? There have been a number of lawsuits, especially in the banking industry, recently alleging unpaid over time. Granted most of those cases involved salaried employees but they seem to have sent shockwaves throughout the country. Panicked employers everywhere dialing up their lawyers to try and see if there's any way they can retroactively cover their butts and make sure problems don't arise in the future.

[fredr123]

From the Government of Alberta's Employment Standards webpage:

What is Overtime?

Except as noted below, overtime is all hours worked in excess of:

• eight hours a day, or
• 44 hours a week.

Overtime hours are to be calculated both on a daily and on a weekly basis. The higher of the two numbers is overtime hours worked in the week.
All employees, including those who are paid a weekly, monthly, or annual salary, must be paid overtime pay for overtime hours they work.



How is Overtime Paid?

Overtime must be paid at the rate of at least 1.5 times the employee's regular wage rate. The sole exception applies where the overtime is accumulated under an overtime agreement.
Employees, who are paid exclusively by incentive pay such as commission, piecework or a similar method, have no established rate of pay. Therefore, for the purpose of calculating overtime entitlements the wage rate is deemed to be the minimum wage. If the incentive pay is less than what would have been earned applying the minimum wage, the employer must top up the incentive pay earnings.
If an employee is paid by a combination of salary and incentive pay, and the salary is greater than minimum wage, the salary establishes the hourly rate for the purpose of calculating overtime entitlements.
Overtime Agreements

Some employers and employees agree to replace overtime pay wholly or partly with time off with pay. This is done through the use of an overtime agreement.
An overtime agreement allows overtime hours to be banked and later taken off with pay, hour for hour, during regular work hours. There are a number of rules that apply with respect to overtime agreements:

• The agreement can be between an employer and a single employee or with a group of employees, or the overtime agreement can be part of a collective agreement.
• Overtime hours are calculated the same way under an overtime agreement as it would be if overtime pay is to be paid at time-and-a-half.
• The Code requires an overtime agreement to be in writing. Employers must give employees who are covered by an overtime agreement a copy of the agreement.
• Time off must be taken within three months of the end of the pay period in which the overtime was earned.
• If time off is not taken, overtime hours must be paid out at time-and-a-half.

[fredr123]

Originally Posted by BlackArcher101

Anybody have experience with these? My employer is implementing one and it feels like I'm going to be getting royally screwed over.

A little background info:
- Office worker
- 100% Salary - Bi-Weekly
- Not part of OT exemptions
- Have been paid OT before based on anything over 8 hours per day (@ regular pay rate, not 1.5 (with my agreement)
- Work week is regular 40 hours (8-5, 5 days)
- No previous written overtime agreements in place

Now, the new agreement has the following:
- Anything over 48 hours per week will be given as time off (at regular time, not 1.5)
- If time off not used after 3 months, it is paid out at regular pay.

From my previous battles obtaining my OT earned, I've had to bring to their attention that according to the employment standards, OT pay is calculated two ways. The ways being anything over 8 hours/day and anything over 44 hours/week. The higher of those two calculations is the OT paid. This agreement I'm to sign effectively negates the 8 hrs/day calculation and basically nullifies my OT, giving the employer a free day and a 6 day work week while only paying 5.

Now, my question is... do overtime agreements trump anything that the employments standards state? I know in tenant standards, the standard itself will override a lease agreement if there is a disagreement between the two. According to the website: http://employment.alberta.ca/cps/rde....xsl/1470.html it states that time must still be paid at 1.5, not straight across.

I'm a little peeved because of this.

WARNING: I don't know the details of your situation. I have not interviewed you or reviewed any documents. I don't even know who you are. The following should be considered a general commentary only.

What you're describing sounds like a fundamental change to an essential term of the employment relationship. This new policy sounds like it's going to take money out of your pocket and essentially result in less pay than you had been receiving before. It's a change in favour of the employer that's being foisted on you.

http://www.duhaime.org/LegalDictiona...dismissal.aspx

[Phaneuf3]

Originally Posted by fredr123

From the Government of Alberta's Employment Standards webpage:

What is Overtime?

Except as noted below, overtime is all hours worked in excess of:

• eight hours a day, or
• 44 hours a week.

Overtime hours are to be calculated both on a daily and on a weekly basis. The higher of the two numbers is overtime hours worked in the week.
All employees, including those who are paid a weekly, monthly, or annual salary, must be paid overtime pay for overtime hours they work.



How is Overtime Paid?

Overtime must be paid at the rate of at least 1.5 times the employee's regular wage rate. The sole exception applies where the overtime is accumulated under an overtime agreement.
Employees, who are paid exclusively by incentive pay such as commission, piecework or a similar method, have no established rate of pay. Therefore, for the purpose of calculating overtime entitlements the wage rate is deemed to be the minimum wage. If the incentive pay is less than what would have been earned applying the minimum wage, the employer must top up the incentive pay earnings.
If an employee is paid by a combination of salary and incentive pay, and the salary is greater than minimum wage, the salary establishes the hourly rate for the purpose of calculating overtime entitlements.
Overtime Agreements

Some employers and employees agree to replace overtime pay wholly or partly with time off with pay. This is done through the use of an overtime agreement.
An overtime agreement allows overtime hours to be banked and later taken off with pay, hour for hour, during regular work hours. There are a number of rules that apply with respect to overtime agreements:

• The agreement can be between an employer and a single employee or with a group of employees, or the overtime agreement can be part of a collective agreement.
• Overtime hours are calculated the same way under an overtime agreement as it would be if overtime pay is to be paid at time-and-a-half.
• The Code requires an overtime agreement to be in writing. Employers must give employees who are covered by an overtime agreement a copy of the agreement.
• Time off must be taken within three months of the end of the pay period in which the overtime was earned.
• If time off is not taken, overtime hours must be paid out at time-and-a-half.

This + it is my understanding that any part of an agreement can't violate the employment standards (otherwise those standards would be useless). any part that does violate them is null and void i believe. of course, i'm not a lawyer so maybe you should contact one of those...

[fredr123]

Originally Posted by Phaneuf3

This + it is my understanding that any part of an agreement can't violate the employment standards (otherwise those standards would be useless).

Employment Standards Code
4 An agreement that this Act or a provision of it does not apply, or that the remedies provided by it are not to be available for an employee, is against public policy and void.

[jammies]

Originally Posted by BlackArcher101

I'm a little peeved because of this.

A little peeved? I'd be foaming at the mouth and preaching insurrection, so you must be some kind of model of self-control.

Anyway, my question would be - what are the implications of not signing this agreement? If it were me, I'd either tell them I was not going to sign it, or I would only sign it if it were heavily amended (make it 42 hours a week, and all time credited at time and a half). It sounds to me like they are setting you up to screw you over, especially as you mention fighting with them about overtime in the past.

[BlackArcher101]

Originally Posted by fredr123

You don't have to answer this, but I'm curious what industry you work in?

It is Oil&Gas. Thanks for the links about the class actions. While not entirely applicable to my situation, it proves that companies out there really don't know the rules.

Originally Posted by fredr123

What you're describing sounds like a fundamental change to an essential term of the employment relationship. This new policy sounds like it's going to take money out of your pocket and essentially result in less pay than you had been receiving before. It's a change in favour of the employer that's being foisted on you.

http://www.duhaime.org/LegalDictiona...dismissal.aspx

It's not a guarentee that it will take money out of my pocket, it's moreso that there is an increased potential for that to happen. Most of my pay periods have zero OT, but when I do OT, it is very excessive and if I sign this new agreement, it can potentially cut my OT by more than half (a lot more once you consider it's not time and a half). While this might seem like constructive dismissal, I'm not entirely sure. Every employee here must sign this same agreement.

Originally Posted by fredr123

Employment Standards Code
4 An agreement that this Act or a provision of it does not apply, or that the remedies provided by it are not to be available for an employee, is against public policy and void.

Just to clarify, this is stating that any agreement that makes any part of the employment code not available to the employee is null and void?

Originally Posted by jammies

A little peeved? I'd be foaming at the mouth and preaching insurrection, so you must be some kind of model of self-control.

Anyway, my question would be - what are the implications of not signing this agreement? If it were me, I'd either tell them I was not going to sign it, or I would only sign it if it were heavily amended (make it 42 hours a week, and all time credited at time and a half). It sounds to me like they are setting you up to screw you over, especially as you mention fighting with them about overtime in the past.

Ya, I do have quite a bit of self control. Considering this is the 3rd time I've battled about OT with my employer... well, now it's just beyond frustrating. As for the implications, it is implied that if I don't sign, then I'm gone (this is the usual for any new form we have to sign). It has been verbally mentioned that this is non-negotiable. I was pressured to sign it in front of them, but advised them that I will not at this time.

Is there free legal advice available for this type of stuff? Thanks for the help so far by the way.

[fredr123]

Originally Posted by BlackArcher101

Just to clarify, this is stating that any agreement that makes any part of the employment code not available to the employee is null and void?

It means you can't contract out of the minimum protections of the Code. Any agreement can offer more than the minimum but not less.

Originally Posted by BlackArcher101

Is there free legal advice available for this type of stuff? Thanks for the help so far by the way.

I thought that's what the OT forum was for?

You can try any of the following:

Alberta Employment Standards (not legal advice) - Call the province-wide Employment Standards number toll-free by dialing 310-0000, then dialing (780) 427-3731.

Lawyer Referral Service - 1-800-661-1095 or 403-228-1722 in Calgary

Calgary Legal Guidance - 234 9266

Student Legal Assistance (for lower income people or U of C students) - (403) 220- 6637

[flip]

From my experience this is a perfectly legal and common thing to do.

The only question I have is: How much overtime do you normally work?

These agreements are common in retail businesses where the employer wants to make sure that people aren't working more overtime than they need to for the sole purpose of getting extra pay.

Hence the reason I asked how much overtime you normally work. If you work a ton, and it is because your employer expects you to stay then this is a shoddy deal.

If you work a lot of overtime at your discretion, then what your employer is doing is saying that you either need to just go home when your 8 hours is up, and finish off whatever you were doing the next day, or that you need to start working more efficiently.

At my previous employer we had the same agreement and it was in place because people were constantly working 55 hour weeks and expecting OT pay when really there was no reason for them to be working overtime. Our employer basically told us that unless absolutely necessary we were not permitted to ever work above 48 hrs per week because the employer did not want to have to pay overtime. A sentiment that, although kind of cheap, is totally understandable considering how much OT can cost a company if it is rampant.

Just my 2 cents.

[DementedReality]

My opinion is that the employer has an ethical obligation to observe the laws and statutes in place and not bully an employee to accept less than standards.

THat being said, I personally have a problem with clock watchers. Do ever come late, leave early or any other sort of time skimming? Dont tell me you dont, and just as you should have some flexability, you should also be willing to work a few minutes here or there.

Frankly, every minute you invest into your job will be paid back by way of opportunity and developing of work ethic. If your current employer abuses that, then someone else will recognize the experiance and effort you provide and recruit you. Of course a company shouldnt assign 10 hours of work to do in 8 hours, but sometimes extra effort is required.

Typically those that complain the loudest about their pay (or lack of) are the sames ones not willing to make the neccesary sacrifices to improve their standings. Not always, but in my experiance, most times.

Thats my opinion, not neccesarily addressed to the OP.

[onetwo_threefour]

As a lawyer who's done a couple of wrongful dismissal claims over the years, I'd advise you that so far you've been given good general advice.
However, you should be aware that certain industries enjoy a level of exemption from the Emplyment Standards Code, and a couple of those industries are Oil & Gas related. (Such as Oil Well Servicing) For the industries listed as having special rules under the Employment Standards Regulation (here: http://www.qp.gov.ab.ca/documents/Re...=9780779730735) the advice you have been given may not be totally applicable. In some cases there are complete exemptions from certain parts of the Code.

Realistically, you should call the Employment Standards informaiton line previously suggested and you may want to look up a labour lawyer if your employer insists on you signing the agreement. I am not in that business anymore, my real estate practice keeps me busy enough, but a lawyer may become necessary if your employer does not enjoy any exemption but still tries to force you to sign the agreement or threatens your job) Even if the industry is exempt, your existing overtime arrangements are very relevant to the question of whether this proosed change amounts to a constructive dismissal that would allow you to leave your employer and negotiate a healthy severance package to keep you while you find something better.

[BlackArcher101]

Originally Posted by flip

The only question I have is: How much overtime do you normally work?

These agreements are common in retail businesses where the employer wants to make sure that people aren't working more overtime than they need to for the sole purpose of getting extra pay.

Hence the reason I asked how much overtime you normally work. If you work a ton, and it is because your employer expects you to stay then this is a shoddy deal.

If you work a lot of overtime at your discretion, then what your employer is doing is saying that you either need to just go home when your 8 hours is up, and finish off whatever you were doing the next day, or that you need to start working more efficiently.

At my previous employer we had the same agreement and it was in place because people were constantly working 55 hour weeks and expecting OT pay when really there was no reason for them to be working overtime. Our employer basically told us that unless absolutely necessary we were not permitted to ever work above 48 hrs per week because the employer did not want to have to pay overtime. A sentiment that, although kind of cheap, is totally understandable considering how much OT can cost a company if it is rampant.

Just my 2 cents.

I normally don't do overtime and if I do, it's because I'm catching up on some work and I don't bother try to get paid out on. For small amounts of OT, ie if I come in 4 hours on a weekend, I will just take a morning or afternoon off. The problem here though is during large projects, I will sometimes do 30 hours OT in one week alone and will go on for 2 months.

My employer and I already have an understanding that any OT that will need to be owed to me must be preapproved. There are others in the office however that complain about OT (about the same amount I have), but there's is accumulated over 6 months compared to my 2 months.

Originally Posted by DementedReality

My opinion is that the employer has an ethical obligation to observe the laws and statutes in place and not bully an employee to accept less than standards.

THat being said, I personally have a problem with clock watchers. Do ever come late, leave early or any other sort of time skimming? Dont tell me you dont, and just as you should have some flexability, you should also be willing to work a few minutes here or there.

Frankly, every minute you invest into your job will be paid back by way of opportunity and developing of work ethic. If your current employer abuses that, then someone else will recognize the experiance and effort you provide and recruit you. Of course a company shouldnt assign 10 hours of work to do in 8 hours, but sometimes extra effort is required.

Typically those that complain the loudest about their pay (or lack of) are the sames ones not willing to make the neccesary sacrifices to improve their standings. Not always, but in my experiance, most times.

Thats my opinion, not neccesarily addressed to the OP.

I agree fully. I usually don't like clock watchers either, but how large is the buffer zone between clock watching and unpaid OT and who defines it? That's the root of the problem here it seems. The employment standards suggest 44 hour weeks. As for coming in late, time skimming, leaving early... I mentioned this earlier up above, but usually around here minimal amounts of OT are just given via letting someone leave early for a day. Very few people around here actually log their time.

I understand that when salary based, a portion of that salary should include an overtime buffer (such as 4 hours) where the employer can expect the employee to work without OT pay.

Originally Posted by onetwo_threefour

As a lawyer who's done a couple of wrongful dismissal claims over the years, I'd advise you that so far you've been given good general advice.
However, you should be aware that certain industries enjoy a level of exemption from the Emplyment Standards Code, and a couple of those industries are Oil & Gas related. (Such as Oil Well Servicing) For the industries listed as having special rules under the Employment Standards Regulation (here: http://www.qp.gov.ab.ca/documents/Re...=9780779730735) the advice you have been given may not be totally applicable. In some cases there are complete exemptions from certain parts of the Code.

Realistically, you should call the Employment Standards informaiton line previously suggested and you may want to look up a labour lawyer if your employer insists on you signing the agreement. I am not in that business anymore, my real estate practice keeps me busy enough, but a lawyer may become necessary if your employer does not enjoy any exemption but still tries to force you to sign the agreement or threatens your job) Even if the industry is exempt, your existing overtime arrangements are very relevant to the question of whether this proosed change amounts to a constructive dismissal that would allow you to leave your employer and negotiate a healthy severance package to keep you while you find something better.

I've already investigated the exemptions and I'm not part of them (not even close). In fact, others in a similar position at different employers get paid out their full OT as if they were hourly. My problem is I'm the only position of that type here at my company and as such, I'm being lumped into the other employees problems and consequences (ie this agreement).