Dear Career Advisor:

I have a question about how overtime is calculated. I’m a new employee to a company where I was advised that overtime would be available. My knowledge of overtime is that when you go over the 40 hours of work per week you would be paid overtime at a rate of time-and-a-half. I’m being advised now that it is calculated based on how many hours are worked after 8:00pm, regardless of what hour you begin work. Is this normal and/or legal?

Regards,

Shanique

Dear Shanique:

Thank you for your question. We’ll first address your specific concern then look generally at the current approaches to overtime pay.

If the advice you have received — that overtime is calculated on the number of hours worked after 8:00 pm regardless of when your shift or workday begins — was given by your employer, we would find that unusual. We have not found any support for that approach either under the Minimum Wage Act or the provisions of the Employment (Flexible Work Arrangements) (Miscellaneous Provisions) Act. We therefore agree with you that it does not appear to be a normal approach to overtime compensation. It appears that this approach could lead to inequities if different employees were to begin their workday or shift at different times and each could only receive overtime after 8:00 pm. We therefore suggest that you again raise the matter with your employer to seek clarity and if the position remains the same then we recommend that guidance be sought from the Ministry of Labour and Social Security.

Traditionally, “overtime work” meant work done:

i. during any period of a rest day

ii. during any period on any Sunday, public general holiday, Good Friday or Christmas Day, or

iii. during any period in excess of 40 hours in any week exclusive of the days outlined in numbers 1 and 2.

However, with the advent of the flexi-week work arrangements, there has been an amendment to the definition of overtime work. It is no longer calculated daily after eight hours of work, but weekly, after 40 hours of work done. In some industries, it would exclude work done on a Sunday. The bill allows for variations in work hours based on what is agreed by the parties, therefore, workers can be asked to do shifts of greater than eight hours but not in excess of 12 hours in any one workday.

Our understanding is that overtime compensation largely depends on the contractual arrangement between the employer and the employee but these are typically guided by the provisions of either the:

i. Minimum Wage Act– Which allows for time and a half for any hours over 8 hours worked for the day and over 40 hours for the week. If your job-function falls under the minimum wage act these provisions might still apply

ii. Flexible Work Arrangements (Flexi-week)-

a. The work-week shall consist of 40 hours

b. Entitlement of overtime arises after the worker has completed 40 hours of work

c. Increase in the maximum number of hours in a workday from 8 or 10 hours to a maximum of 12 hours

d. All 7 days of the week can be considered as possible working days

iii. Contractual agreement – What has been agreed by the parties especially at the supervisory and management levels. Note, however, that this is applicable only as long as the employee is not contracting himself or herself out of reasonable benefits.

Again, when in doubt, please seek guidance from the Pay and Conditions of Employment Section of the Ministry of Labour and Social Security.

Trusting this response has adequately addressed your concerns.

Sincerely,

Career Advisor

Carolyn Marie Smith is associate vice-president of student services at Northern Caribbean University in Mandeville, Manchester. Submit your questions to her at careeradvisor@ncu.edu.jm