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Canadian Employee working in US
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Canadian Employee working in US
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
Hello,
We are a consulting company and thus cross-share resources and project loads from time to time between Canada and the US (we have companies in both countries)
We have a Canadian employee
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Forums » Topic Forums » Legal Forum » Canadian Employee working in US
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Canadian Employee working in US
posted at 8/13/2011 9:43 AM EDT
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Posts: 6
First: 8/13/2011 Last: 8/15/2011 |
Hello,
We are a consulting company and thus cross-share resources and project loads from time to time between Canada and the US (we have companies in both countries) We have a Canadian employee working in the US - under Canadian law, the employee would be eligible for OT pay (1.5x) for any work />44 hours; would this still apply for their work in the US since they are still a Canadian employee or does it depend on the location of where the OT is worked |
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Canadian Employee working in US
posted at 8/13/2011 3:36 PM EDT
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
Location. 1.5X for hours worked over 40 in the US. Unless you're in a state, such as California, which mandates 1.5x for any hours worked over 8 in one day.
Of course, this depends on what work your employee is doing. If its exempt from the provisions of the Fair Labor Standards Act, then no OT pay is required. If not, then the overtime rates of pay apply. |
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Canadian Employee working in US
posted at 8/13/2011 3:58 PM EDT
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Posts: 6
First: 8/13/2011 Last: 8/15/2011 |
NorK, thank for your reply.
We pay our employees straight time for OT in the US - can you clarify why the 1.5X would apply for work in the US (is it because the employee is employed out of our Canadian company and Canada requires 1.5X for this position) apologies that my initial question was not clear, but if you could clarify that would help. thanks |
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Canadian Employee working in US
posted at 8/14/2011 8:35 AM EDT
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
If the employee is a non-exempt employee ("non-exempt" meaning subject to the provisions of FLSA), then you pay 1.5x hourly rate for OT.
If the employee is in one of the categories considered exempt from FLSA, then there is no need to pay OT rates at any rate. |
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Canadian Employee working in US
posted at 8/14/2011 2:28 PM EDT
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Posts: 6
First: 8/13/2011 Last: 8/15/2011 |
we have never paid 1.5x for OT here in the states - not sure why we would need to pay 1.5x
My question was more focused on whether the Canadian law would apply for a Canadian employee when working in the US or whether the location at which the work was performed would dictate the legal obligations thanks! |
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Canadian Employee working in US
posted at 8/15/2011 3:03 AM EDT
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Posts: 1771
First: 10/24/2002 Last: 9/14/2011 |
In Canada, OT at 1.5x is legally required for all non-exempt employees working more than 40 hours in any given week in all but two provinces. What province is your Canadian employee in?
In the US, OT at 1.5x is legally required for all non-exempt employees working more than 40 hours in any given week (and 8 in any given day, depending on what state the employees are in), in all states. If you're not paying your non-exempt American employees 1.5 times their normal hourly rate for all hours worked above 40 in any given week, you're in violation of both federal and state FLSAs. Your Canadian employee is not subject to Canadian employment laws while working in the US. He/she is subject to US employment laws. He/she is also subject to US immigration laws, which means he/she must have a valid US work visa in order to work in the US. If he/she does not have such a document, then according to the law, you are harboring an undocumented alien. |
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Canadian Employee working in US
posted at 8/15/2011 3:56 AM EDT
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Posts: 6
First: 8/13/2011 Last: 8/15/2011 |
Dear hrbth
thanks for your response - re: immigration, we have certainly covered the legal requirements, we practice engineering so are fully compliant with codes/laws, no issues there. Employees in Canada are in Ontario - employees in the US are in multiple states (CA, PA, NC) and are considered exempt based on being salaried and their job functions - we do pay them for OT but at straight time. Your clarification on how to handle US/Canada employee cross-sharing was helpful -thank you |
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Canadian Employee working in US
posted at 8/15/2011 5:45 AM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
Ratkik-Just to further clarify. You do not have any administrative staff on your US Payroll? For example:
- Admin assistants - Drafters - Technicians - Clerical assistance If you only have engineers then you are fine but normally these staffs have some kind of support services.......... |
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