The majority of employees are required, one day or another, to work hours beyond their regular schedule. But rules specifically govern this practice and employees protected by the Act respecting labor standards can refuse, in certain situations, to work overtime.
How many hours per week can be considered as overtime?
Overtime law in California, a “work week” is considered to be any one of seven consecutive days, beginning with the same calendar day of each week at any time on any day, provided it is fixed and occurs regularly.
A typical work week has seven consecutive days and can start on any predetermined day of the week. A workweek is 168 hours long and can be counted, for example, from Sunday to Saturday, or from Monday to Sunday, or from Wednesday to Tuesday, depending on the DIR.
An employer must provide an employee with a fixed weekly schedule that “can only be changed if the change is of a permanent nature and is not intended to circumvent the employer’s overtime obligation.”
It is assumed that an employee cannot work more than 40 hours, or the equivalent of five eight-hour shifts, within the established workweek without earning overtime pay.
The first eight hours worked on the seventh consecutive day of the workweek must be paid at the rate of one and one-half times the hourly base wage. After eight hours on the seventh day, the employer is required to pay the employee double their base hourly wage until a new work week begins.
How to calculate overtime.
For the majority of employees, the normal work week is 40 hours. In calculating these working hours, we also include:
- The hours spent at the employer’s disposal in the workplace waiting for work;
- Breaks granted by the employer;
- The time allowed for travel required by the employer.
However, the following should not be included in this calculation:
- Time allowed for meals. However, if you must remain at your workstation during the meal, for example, if you are a receptionist and you must continue to serve customers, then the meal hours are calculated as working hours.
Hours worked in excess of 40 hours per week must normally be paid as overtime. So whether your normal work week is 32, 35 or 40 hours, only the hours worked in excess of 40 hours per week normally have to be paid as overtime by your employer.
Exceptions to the normal work week
The Act respecting labor standards specifies that certain employees have a different workweek. The law provides that for certain employees, the normal work week is more than 40 hours. There is also an exception for employees who work outside the establishment of their employer and whose working hours are uncontrollable.
This exception may apply, among others, to teleworkers, i.e. employees who use technology to work outside their employer’s establishment. The exception only applies if the hours worked by the teleworker are beyond the employer’s control. Indeed, the mere fact that an employee works from home does not make his hours uncontrollable. A distinction must be made between “uncontrollable hours” and “uncontrolled hours” by the employer.
Even remotely, the employer can often take steps to control their employees’ hours and ensure that they stay within working time limits. He could also advise his employees that unapproved overtime is not tolerated. In addition, the employer should put in place controls for rest periods, meal breaks and maximum hours of work.
