Do I have to pay overtime to software developers in Ontario?

Startups often assume salaried employees don’t get overtime. In Ontario, salary has nothing to do with it. What matters is the job someone actually does.

What’s the general rule?

Under the ESA, most employees are entitled to overtime pay at one and a half times their regular rate for hours over 44 in a work week. Employees and employers can’t agree to give up overtime, though they can agree in writing to paid time off instead, or to average hours over up to four weeks. See the overtime guide. There are also limits on hours of work: 8 a day and 48 a week, unless the employee agrees in writing to more. See the hours of work guide.

Who is exempt?

Role	Overtime?	Hours of work limits?
Information technology professional, as defined in O. Reg. 285/01	No (s. 8)	No; Part VII of the ESA doesn’t apply, so no daily or weekly hours limits, rest periods, time off between shifts or eating periods (s. 4(3))
Manager or supervisor whose work is supervisory or managerial in character	No, as long as any non-managerial tasks are only irregular or exceptional (s. 8)	Mostly no; the daily and weekly hours limits and rest period rules don’t apply, but eating periods do (s. 4(1))
Salaried marketing, sales, customer support, operations staff	Yes	Yes
Designers, animators and others who use software rather than build or maintain systems	Usually yes	Yes

Ontario’s exemptions page lists what IT professionals aren’t entitled to. Other ESA standards, such as minimum wage, public holidays, vacation and termination, still apply to them.

Who counts as an IT professional?

Section 1 of O. Reg. 285/01 defines an information technology professional as an employee “primarily engaged in the investigation, analysis, design, development, implementation, operation or management of information systems based on computer and related technologies through the objective application of specialized knowledge and professional judgment.” The words “primarily engaged” matter: the exemption turns on what the person mostly does. People who mainly use systems that others build, such as computer animators or content creators, are less likely to fit. Product managers, data analysts and QA testers can fall on either side, depending on their actual work.

Do job titles matter?

No. Calling someone “Head of Growth” or “Senior Engineer” doesn’t make them a manager or an IT professional. If an inspector or court finds they don’t meet the definition, unpaid overtime can be claimed back.

Are commissioned salespeople different?

Sometimes. Under s. 2(1)(h) of O. Reg. 285/01, a salesperson (other than a route salesperson) paid wholly or partly by commission on sales of goods or services that are normally made away from the employer’s place of business is exempt from hours of work, overtime and several other standards. Inside sales teams at a SaaS company, selling by phone, email and video, don’t usually fit that description, so they’re generally entitled to overtime. Fully remote sellers are less clear-cut, so check the facts before relying on the exemption.

What should I do?

• Review each role against what the person actually does.
• Track hours for non-exempt employees, including remote staff.
• Use written averaging or time-off-in-lieu agreements where they help.
• Say in the employment agreement whether the role is exempt, but don’t rely on that statement alone.

What to do next

Our employment agreement template covers hours, overtime and other ESA terms, at a fixed fee on our fees page. See also your first hire in Ontario.

This guide is general information about Ontario law, not legal advice for your situation. To review your team’s roles, book a free 15-minute consult.