Employment in the technology industry notably expanded before and during the pandemic. The technology sector has recently hit the news again with significant layoffs from late 2022 to early 2023. 

As a result of the layoffs, some have expected to take on more duties and responsibilities to cover for the gap left by laid-off tech workers. This has increased questions regarding employment law, workers’ rights, and employers’ obligations in the technology industry. In particular, there is an exception for those deemed “IT professionals” in the Ontario legislation, affecting their rights, including overtime pay. 

In this article, we will discuss the statutory scheme regarding IT professionals and discuss some case law, which gives guidance to who may fall under this category and how their rights may be affected. The information we share is helpful for technology industry employees who wish to know what types of protections are available to them. Furthermore, we provide employers with important insights for ensuring they meet statutory employment requirements for tech workers.

Ontario Employment Legislation for IT Professionals 

The Employment Standards Act in Ontario sets out minimum standards for workers, including working hours, overtime pay, severance, and more.

There are also distinct regulations that arise from the Employment Standards Act. Recently, this includes the regulation, O. Reg. 285/01: When Work Deemed to be Performed, Exemptions and Special Rules (the “Regulation”). This Regulation covers exemptions that apply to certain classes of workers, including “information technology professionals”. 

An IT professional is defined as the following under the Regulation:

“information technology professional” means an employee who is 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; (“professionnel en technologie de l’information”)

The Regulation sets out that Parts VII and VIII of the Employment Standards Act do not apply to IT professionals. This means that the following minimum requirements do not apply to an IT professional:

1. Working no more than 8 hours a day (unless there is a valid agreement to work more or an emergency); 

2. Working a maximum of 48 hours per work week (unless there is a valid agreement to work more); 

3. At least 11 consecutive hours free from performing work each day; 

4. A period of at least 8 hours free from the performance of work between shifts unless the total time worked on successive shifts does not exceed 13 hours (unless there is a valid agreement specifying otherwise).
   
5. A period free from the performance of work equal to:
   1. at least 24 consecutive hours in every work week; or
   2. at least 48 consecutive hours in every period of two consecutive work weeks.
      
6. Eating periods of at least 30 minutes every five consecutive hours worked (unless otherwise agreed upon).

IT professionals are also not entitled to overtime pay as per Part VIII of the Employment Standards Act. Under Part VIII, employers are to pay employees overtime pay of at least 1.5 times their regular rate for each hour of work over 44 hours per week. 

Who is considered an IT professional?

The case law regarding this question is continuing to develop. However, these exemptions would apply to roles that involve developing, maintaining, testing, and implementing computer and related technologies. This is likely to apply to different software development roles requiring a higher level of professional judgment. 

IT professionals would likely not involve the following, who are not directly involved with developing, maintaining, implementing, or testing the technology, or do related work that does not involve a higher level of professional judgment and specialized knowledge:

1. Consumer-facing IT support (for instance, helpdesk roles, as they involve troubleshooting the software);
   
2. UX/UI designers or graphic designers;
   
3. Administrative staff;
   
4. Sales and customer relations. 

In a recent Ontario case, Zhong Cheng v NRT Technology Corp. operating as NRT Technology, 2020 CanLII 30103 (ON LRB), the Ontario Labour Relations Board found that Project Managers are considered IT professionals. 

The employer was NRT, which developed software for self-serve kiosks for credit cards and purchases in a variety of spaces, including in casinos, banks, retailers, and other locations for ATM operators. The Labour Board found that they were primarily a software company. The Project Management Department included teams of Senior Project Managers, Project Managers, IT professionals, Business Analysts, and Technical Writers. 

The application was a software engineer with 25 years of IT and telecommunications experience, including 18 years of Project Management experience. 

The Labour Board looked at the Project Manager’s job description to determine their role and whether it fell within the IT professional category. Even though Project Managers do not directly code the software, they are involved in the management and implementation of technology, which requires specific knowledge of the software development process, methodologies, and deployment processes in order to implement the project. In particular, the applicant was hired due to his significant expertise in IT and telecommunications, which would allow him to use his judgment to investigate, analyze, implement, operate, and manage information systems and software to assist NRT. 

A Project Manager was also required to use their specialized knowledge and professional judgment to “recommend and implement improvements to a product based on the industry’s best practice and the Applicant’s experience” (para 16). Therefore, the Labour Board considered Project Managers to have “specialized knowledge” and would use their “professional judgment” to manage software projects. The Labour Board noted that this role was not akin to a low-wage helpdesk role that would assist with administrative IT tasks. 

Therefore, the applicant in the case was an IT professional and was not entitled to overtime pay. 

There is ongoing, developing case law to explain whether or not a particular role will fall under the category of IT professionals under the Regulation. As there are many diverse roles in the technology industry, it remains to be seen which types of roles will also be considered IT professionals under the Regulation and are therefore exempt from working hour standards and overtime pay. 

Contact Toronto Employment Lawyer Paulette Haynes For Advice On Employment Standards Claims

Employment Lawyer Paulette Haynes and her experienced employment law team at Haynes Law Firm in Toronto can assist you with issues arising from employment standards claims. Our team has experience working with professionals in the technology industry. For employees, our goal is to ensure that they understand their rights and receive maximum compensation. Haynes Law Firm also assists employers in avoiding liabilities that may arise from policies that contravene employment standards. We are dedicated to finding the best resolution for you.

To book a consultation, please contact us online or by phone at 416-593-2731.