Where I live, the law requires employers to pay overtime if more than 8 hours of work are in a shift. Some employers get around this and I'm wondering how? Their contract just states "there is no over time pay for this job". Is this technically illegal? I know temp agencies do this. Also I've heard paying only commission with no base pay is illegal but they still have job contracts for it.

I'm guessing employers get around this with some technicality as to the relationship, but according to this it's not clearly defined if a relationship is employee-employer or contractor.

  • In the US, at least, some positions are exempt from laws governing overtime pay; these are, as I understand it, generally salaried positions and the salary must meet some minimum threshold. There may be a similar provision in Canada. Your second link isn't working, by the way; it points to http://commis. – phoog Apr 13 '17 at 20:59
  • One way to interpret such a contract is that workers are not authorized to work more than 8 hours per shift, which is a fairly common kind of company policy. It is hard to tell if the interpretation is plausible in the situation that you describe. – ohwilleke Apr 13 '17 at 23:50

It would basically be illegal, regardless of what a contract says: contracts are subordinate to the law. So the question comes down to whether the law unequivocally requires OT for shifts longer that 8 hours. These sorts of governmental fact sheets are not absolute statements of the law, they are guidelines about what is most commonly applicable, and to determine if there are any exceptions, one must consult the actual law. The fact sheet says "After working eight hours in a day an employee must be paid time-and-a-half for the next four hours worked", which is somewhat different from "in a shift". The (summarized restatement of the) law says that an "averaging agreement" is legal (if in writing), so if that allows working more than 8 hours in a shift, that could be consistent with (does not override) the law. To really know, you have to read the actual law.

The section on maximum hours and overtime says

35 (1) An employer must pay an employee overtime wages in accordance with section 40 if the employer requires, or directly or indirectly allows, the employee to work more than 8 hours a day or 40 hours a week.

(2) Subsection (1) does not apply for the purposes of an employee who is working under an averaging agreement under section 37.

So 3 shifts of 12 1/3 hours would be legal, and perhaps typical in a hospital. The "average hours" part of the law says

an employer and employee may agree to average the employee's hours of work over a period of 1, 2, 3 or 4 weeks for the purpose of determining the employee's entitlement, if any, to overtime wages under subsections (4) and (6) of this section and wages payable under subsection (8) or (9) (b).

as long as there is a clear advance agreement (as in a contract). This still limits hours worked without overtime to 40 hours/week (on average), and then there is still an upper limit of 12 hours:

An employer under this section who requires, or directly or indirectly allows, an employee to work more than 12 hours a day, at any time during the period specified in the agreement, must pay the employee double the employee's regular wage for the time over 12 hours.

Since the law is stated in terms of "day", we better see what a "day" is:

"day" means

(a) a 24 hour period ending at midnight, or

(b) in relation to an employee's shift that continues over midnight, the 24 hour period beginning at the start of the employee's shift;

so you can't force an employee to work 12 hours without overtime (without an averaging agreement), simply by splitting a 12 hour shift across midnight.

It is thus possible for a contract to do things that superficially appear to be contrary to the "most common situation" factsheet representation, but the law itself is not overridden by such a contract.

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