Unless an employee is exempt from overtime, such as a manager,
IT professional or a commissioned salesperson, the ESA and its
regulations mandate that any time a person spends travelling on
business (other than a normal commute) is time "worked"
for the purposes of determining employee overtime entitlement.
That means that an employee who is required to fly to another
city on business generally must be compensated for the travel to
the airport, the time spent waiting at the airport, the time on the
plane and the time getting to the final destination upon arrival.
This can be frustrating for employers as employees may be accruing
significant amounts of overtime, while performing little or no
productive work for an organization.
As a result, employers would be wise to (re)assess their
policies and procedures surrounding business travel to help
minimize their overtime liability. While it may be impossible to
outright eliminate overtime accrual, employers interested in
limiting overtime pay should consider the following strategies:
Time off in Lieu of
Overtime: If an employee agrees in writing, an employer
may provide an employee with paid time off in lieu of overtime pay,
which is to be provided at 1.5 hours for each hour of overtime
Agreements: Under an averaging agreement, an
employee's hours of work may be averaged over two or more
consecutive weeks for the purposes of determining overtime
entitlement. This may have the effect of diluting overtime
liability as the extra hours an employee works in one week may be
spread over a specified number of weeks.
Scheduled Days off in the
Work Week: Employers may provide an employee with days off
in the work week so as to avoid having the employee exceed the
statutory overtime threshold. For example, if you are aware that an
employee will be doing 8 hours of business travel on a Sunday,
consider having that employee take the previous Friday off in order
to keep the total hours worked under the 44 hour weekly
Lower Wage Rate for
Travel: Depending on the circumstances, employers can pay
employees at a lower wage rate for time spent travelling on
business, particularly if the time is non-productive. By taking
this approach, overtime entitlement would be calculated at the
employee's average rate, thus reducing overtime
liability. Employers would be wise to introduce this approach at
the outset of the employment relationship as unilaterally imposing
such a condition during the course of employment could result in
employee resistance and possible issues of constructive dismissal.
Employers must also be careful to ensure compliance with minimum
In a nutshell, employers can and should be proactive in managing
their overtime obligations and potential liability as it relates to
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