I am wondering if there is any labour rules or legislation that relate to employees who must be on call for weekends such as sales staff. I know that there is a mimum call-in pay of 3 hours for work performed outside of regular hours for production staff, but is there a requirement to pay employees who are required to be “at the disposal of the employer” such as a sales employee who is on call during the weekend and must be ready to come into work if anything arises on the weekend? They are paid if they do get called in but is there legislation for just being on call or is it more of an employers discretion?
From Pay For No Work – Part I – On-Call by Donovan Plomp of McCarthy Tétrault LLP
In addition to vacations and statutory holidays, there are two key times when an employee who is not performing any productive work may be entitled to be paid under the Employment Standards Act:
– While on-call other than at home; and during travel time.
On-call employees are “at work” and are entitled to be paid regular wages as well as overtime for those hours of work. The Act provides that an employee is “at work” while on call at a location designated by the employer, unless that location is the “employee’s residence”, a term which is narrowly construed and probably does not include most temporary accommodation provided by the employer at or near the worksite.
Employees who are not in their own homes and who are required by the employer to be available to work on an as-needed basis are on-call and “at work” for the purposes of the Act, even if they are sleeping or watching television. There are a number of exemptions set out in the Regulation relating to live-in home support workers, night attendants, residential care workers and certain industry-specific workers such as fish farm workers.
Watch out for:
– Employees who are required to remain at or near the workplace after work and who may be required to work on an as-needed basis; and
– Employees who are on-call at home, but who are subject to significant restrictions, such as a short response time, which effectively curtail the employees’ mobility or freedom.
– Do not require employees who remain at the workplace after their hours of work to be available to work on an as-needed or emergency basis; and
– When preparing guidelines for employees on-call, carefully consider the reasonableness of response times or other restrictions.
“employees who are on-call at home, but who are subject to significant restrictions, such as a short response time, which effectively curtail the employees’ mobility or freedom.”
Herein lies the issue. The sales staff member feels restricted in their freedom and mobility on the weekend due to the fact that they are on-call for the weekend. Even though they are at home they feel restricted because they are not free to travel far from home in case an emergency arises while they are on call and they would be required to come in to the office. Should the employee be paid for being on call or only when called in for an emergency? Is there a requirement to pay or is it at the discretion of the employer?