Technology is on the rise. Tech jobs have exploded in numbers in recent years, but especially since the pandemic. We work with many tech clients, especially tech startups with exponentially growing headcounts. There are many types of workers who work with technology companies, including information technology (IT) professionals. It is essential that technology companies that employ IT professionals understand the rights of their workers, especially their IT professional employees, whose employment standards rights are different from those of some others. employees.
How are the rights of an IT professional different?
Under Reg. 285/01 from Ontario Employment Standards Act 2000 (“ESA”), IT professionals are exempt from the following requirements under the ESA:
- daily or weekly limits on working hours
- daily rest periods
- free time between shifts
- weekly/bi-weekly rest periods
- meal periods
- payment of overtime
The laws of British Columbia, Alberta and Nova Scotia also provide exemptions to employment standards for IT-related work. For example, rules regarding maximum hours of work, meal and rest periods, and overtime pay do not apply to “information systems professionals” under Alberta law. “High-tech professionals” in British Columbia are exempt from rest and meal breaks, as well as statutory holiday and overtime pay. In Nova Scotia, minimum standards for overtime pay do not apply to information technology professionals.
What is an IT Professional in Ontario?
Under Ontario’s DSL Regulations referenced above, an “information technology professional” is defined as:
an employee who is primarily engaged in the investigation, analysis, design, development, implementation, operation or management of computer-based information systems and related technologies through the objective application of specialist knowledge and professional judgment.
What does this definition mean?
The above definition of an IT professional is quite long! What does it mean? Well, we know that this definition is meant to be read narrowly by referees and has limited application. the Ministry of Labour clarified that the definition of IT professional is not intended to apply to employees who perform routine tasks that do not require specialized knowledge or professional judgment. Basically, the mere fact of working in an IT company, having computer skills, being in an IT group, or even having the title of “IT professional” is insufficient for the inclusion of the employee in the category.
What are some examples of tasks performed by IT professionals?
The above explanation may still make you wonder who is an IT professional really? It may be helpful to examine what IT professionals actually do.
Here are some examples of computer work tasks:
- Testing software
- Software development
- Maintenance of computer software and systems
Here are some examples of tasks that would not be captured by the definition of IT professional:
- Front line IT support
- sales software
- Heads of people or projects
- Graphic designers
- Administrative or support staff
Some industry stakeholders have taken the position that these exemptions are necessary in the IT world because prompt support is essential to maintain IT systems and ensure problems do not escalate. Others argue that it is not clear why the IT industry is exempt from all of the ESA’s working hours and overtime provisions, when there are so many other industries, where a Urgent action or response is vital and where longer hours are a big part of the job. , which are not subject to these exemptions favorable to employers. Whether the exemptions exist to preserve the status quo or otherwise, the fact is that these exemptions have been in place since 2001 and remain so. There is a remote possibility that the new Bill 27, the Labor law for workers, 2021may change this due to the “right to disconnect” provisions, however, without further guidance from the government or the courts, it is too early to tell at this stage.