Tech is on the rise. Tech jobs have exploded in number in past years, but especially so since the pandemic. We work with a lot of tech clients, especially tech startups with workforces that are growing exponentially. There are many types of workers who work with tech companies, amongst them information technology (IT) professionals. It is critical for tech companies that employ IT professionals to understand the rights of their workers, especially their IT professional employees, whose employment standards rights are different from those of some other employees.
How Are an IT Professional’s Rights Different?
Under O. Reg. 285/01 of Ontario’s Employment Standards Act, 2000 (“ESA”), IT professionals are exempt from the following requirements under the ESA:
- daily or weekly limits on hours of work
- daily rest periods
- time off between shifts
- weekly/bi-weekly rest periods
- eating periods
- overtime pay
British Columbia, Alberta, and Nova Scotia legislation has similarly carved out employment standards exemptions for IT-related work. For instance, the rules around maximum hours of work, eating and rest periods, and overtime pay do not apply to “information systems professionals” governed by Alberta law. “High technology professionals” in British Columbia are exempt from rest and eating periods, and public holiday and overtime pay. In Nova Scotia, minimum standards around overtime pay do not apply to information technology professionals.
Who is an IT Professional in Ontario?
Under the Ontario ESA Regulation mentioned above, “information technology professional” is defined as the following:
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.
What does this Definition Mean?
The above definition of IT professional is quite the mouthful! What does it mean? Well, we know that this definition is meant to be read narrowly by adjudicators and has limited application. The Ministry of Labour has made it clear that the definition of IT professional is not intended to apply to employees who perform routine tasks that do not require specialized knowledge and professional judgment. Basically, simply working at an IT company, having IT skills, being in an IT group, or even having the title of “IT professional” is insufficient for the employee’s inclusion in the category.
What are some Examples of Tasks completed by IT Professionals?
The above explanation may still leave you wondering who is really an IT Professional? It can be helpful to look at what IT professionals actually do.
Some examples of IT professional tasks are:
- Testing software
- Developing software
- Maintaining software and computer systems
Some examples of tasks that would not be captured by the IT professional definition include:
- Frontline IT support help
- Selling software
- People or project managers
- Graphic designers
- Admin or support staff
Some industry stakeholders have taken the position that these exemptions are necessary in the IT world, as timely support is critical to maintaining IT systems and ensuring problems don’t go from bad to worse. Others argue that it’s unclear why the IT industry is exempt from all of the ESA provisions dealing with hours of work and overtime, when there are so many other industries, where urgent action or response is vital and longer hours are a big part of the job, that are not subject to these employer-friendly exemptions. Whether the exemptions exist to preserve the status quo or otherwise, the fact of the matter is that these exemptions have been in place since 2001 and remain in place. There is a slight possibility that the new Bill 27, the Working for Workers Act, 2021, may change this due to the “right to disconnect” provisions, however, without further guidance from the government or courts, it is too early to tell at this stage.