What VFX Artists Should Know About Overtime

Because of the long hours in our industry, artists often have questions about overtime.   Here's what I know about it.

The Ontario Ministry of Labour has several pages dedicated to information about overtime.

In Ontario, overtime must be paid if the worker exceeds 44 hours a week. Overtime pay is time and a half.

This means if you earned $20 an hour, after 44 hours you would be paid $30 dollars an hour. If you are paid weekly, overtime laws still apply to you. For example, if you were paid $1000 a week, you would divide that by 44, and that would be your hourly rate to use to calculate overtime. So $1000 divided by 44 is $22.72 so your overtime rate would be $34.09 dollars.

In Ontario, overtime is not calculated per day, but per week. Let's say you worked a 15 hour day, if the total time you worked that week was under 44 hours, you don’t qualify for overtime pay.

Managers and supervisors do not qualify for overtime pay. If supervisors only sporadically do other non-supervisor work, they still do not qualify for overtime. If they mostly do non-supervisor work and only sporadically supervise, they do qualify. There’s a good article by the Globe and Mail about overtime here, very much worth your time.

Some professions do not qualify for overtime pay. These include lawyers, accountants, engineers, IT professionals and firefighters, among others. Film and television workers do qualify for overtime pay.

A worker can can receive time off instead of overtime. This needs to be made clear in writing, usually in the worker’s contract. The way this works is that the worker would get an hour and a half of paid time off for every hour of overtime they have worked. The time off must be taken within three months of the overtime or then the employee has to be paid. If there is a written agreement, this time can be extended to a year instead of three months. If your contract is up before you have a chance to take your time off, you have to be paid the overtime.

Something that makes this whole thing more complicated is that your employer can create an Averaging Agreement which is used to calculate your overtime pay over a longer period of time. Usually overtime is calculated for the time you worked in one week. An Averaging Agreement can average your overtime over several weeks. This notice needs to be in writing, the employees must agree to this in writing and must be posted where employees have a reasonable expectation of seeing it. It must have an expiry date and cannot be longer than two years. It must be approved by the Director of Employment Standards (a government official). If the company has applied for an averaging agreement and they haven’t heard back from the Director of Employment Standards in 30 days, they may start an Averaging Agreement, but only in two week increments.

This is getting complicated, so let’s see an example. Let’s say there’s an averaging agreement for four weeks. That means overtime is paid if your total hours worked exceeds 176 (44 hours a week x 4 weeks = 176).

Week 1 you work 65 hours.

Week 2 you work 32 hours.

Week 3 you work 32 hours.

Week 4 you work 47 hours.

The total time adds up to 176, so you would get no overtime pay. If in week 4 you worked 50 hours, you would get three hours of overtime pay.

You cannot give up your right to overtime pay, and your company cannot temporarily lower your pay rate in order to get around paying you your fair rate.

What about holidays? With holidays there can only be three situations:

  • You did not work on the holiday. Because no hours were worked, they do not count towards overtime pay.
  • You did work the holiday but you’re getting another day off. The hours you worked would go towards overtime pay.
  • You worked the holiday and received premium pay (defined by the government as at least time and a half) plus holiday pay.

Good, well run studios will make this all clear to you right up front, either in the interview or when you get hired. A good studio will have an employee handbook or wiki that clearly explains their overtime policies.

Smaller studios are often run by artists who may be either ignorant about the law or may try to circumvent it by just not talking about it. I would recommend that if your boss doesn’t bring it up, you should talk about overtime before it happens. Find out if they give time off or if it’s paid out.

Film and television workers (I'm not sure if post production workers are counted as film and television workers, or if this applies only to people on set, I am trying to find out) are exempt from some of the Employment Standards Act, but all parts of the overtime laws fully apply to visual effects artists.

If you have any questions, please ask in the comment box below. I’m no employment law lawyer, but I can try to find out.