[Haley O’Halloran]

in reply to: Performance Review Criteria #96855

Hi Susie!

What often helps is defining specific observable behaviours and impact levels under each category, so it’s easier to anchor evaluations.

Here’s a more detailed framework you could consider expanding to:

Outstanding (OS)

Consistency & Reliability: Consistently demonstrates excellence in all areas of work, with little to no oversight required. Anticipates needs and resolves potential issues proactively.

Initiative & Leadership: Frequently takes ownership of complex or high-impact projects beyond their role. Actively mentors, coaches, or elevates team performance.

Innovation & Problem-Solving: Regularly introduces improvements, creative solutions, or efficiencies that positively impact the organization.

Collaboration & Culture: Seen as a role model for organizational values; inspires others with positivity, resilience, and adaptability.

Exceeds Expectations (EE / AE)

Consistency & Reliability: Performs all duties at a strong level, often going above the standard requirements. Occasionally anticipates needs and identifies opportunities for improvement.

Initiative & Leadership: Willingly takes on new or difficult tasks when needed; contributes to team success beyond their own role.

Innovation & Problem-Solving: Suggests improvements and solutions, some of which are implemented with success.

Collaboration & Culture: Encourages teamwork and maintains a positive attitude, serving as a reliable support to peers and managers.

Meets Expectations (ME)

Consistency & Reliability: Completes assigned tasks on time and to an acceptable standard. Requires standard levels of guidance.

Initiative & Leadership: Takes responsibility for their own work but rarely steps outside defined responsibilities.

Innovation & Problem-Solving: Resolves issues within scope using established methods, but seldom introduces new approaches.

Collaboration & Culture: Works respectfully and cooperatively with colleagues, demonstrating alignment with core values.

Optional Additions

Some organizations also add a “Needs Improvement” or “Developing” category for clarity at the lower end. This gives managers language to describe performance that is below expectations without having to misapply “Meets Expectations.”

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Layoffs & Extending a Fixed Term Contract #96831

Hi Aleesha!

You’re right to suspect there are a couple of key timing and legal pitfalls here.
Here’s how this generally works in Canada, along with what your options might be.

1. Contract Expiry and Retroactive Extension

Once a fixed-term contract expires, the employment relationship legally ends unless:

You have continued the person working beyond the expiry date, which can trigger an implied extension or conversion to an indefinite-term contract under employment standards/common law; or

You execute a new contract starting immediately after the last one ends.

You cannot backdate an extension to before the expiry date unless it’s clearly documented and agreed in writing — otherwise it risks being considered a fresh contract or even evidence that they’ve been a continuing, permanent employee.

2. Layoff Rules for Fixed-Term Employees

If an employee is truly on a fixed-term contract, a layoff doesn’t usually make sense — their employment ends at the contract end date.

If you extend the contract and then immediately place them on a temporary layoff, they will need to meet Employment Standards Act rules for temporary layoffs:

In BC, a temporary layoff can last up to 13 weeks in any 20-week period without triggering termination pay.

The layoff must be for a reason recognized under the ESA (e.g., shortage of work).

You need the employee’s written agreement to the layoff if it’s not in the original contract.

If the layoff is not ESA-compliant, it can be deemed a termination, triggering notice or pay in lieu.

3. Health Benefits During a Layoff

Many employers keep benefits active during a temporary layoff, but:

Your benefits provider must agree to continued coverage.

Some plans only allow coverage if the employee is still “actively employed,” so you’d need written confirmation from the insurer before proceeding.

4. Practical Options

Best practice: If you truly want them back in a couple of weeks and want to maintain benefits, you might:

Sign a short new fixed-term contract starting immediately, covering the gap until work resumes.

Continue paying them (even if not working) so employment status and benefits remain intact.

Alternative: Execute a new contract now and issue a compliant temporary layoff notice with written agreement, keeping benefits active per the insurer’s approval.

5. Risk Considerations

Multiple contract extensions over time can make it easier for an employee to argue they’re really an indefinite-term employee — which means they’d be entitled to regular termination notice/pay.

Retroactive changes after expiry are high risk if challenged.

If the goal is benefits continuity without triggering a deemed termination, the safest route is to keep them as an active employee under a valid current agreement.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Layoff’s in BC #96823

Hey Aleesha!

So here is a breakdown of the layoff and termination rules in both provinces:

British Columbia

Layoff Duration & Termination Trigger
-Under the BC Employment Standards Act (ESA), a temporary layoff can last up to 13 weeks in any 20-week period (or longer if certain conditions are met, such as benefits continuation and agreement with the employee).
-If the layoff exceeds the allowable limit, it’s deemed a termination on the date the layoff started.

Pay in Lieu of Notice (Termination Pay)
-If the layoff becomes a termination, the employee is entitled to notice or pay in lieu, based on length of service:
<3 months: No notice required
3 months to <1 year: 1 week’s pay
1 year to <3 years: 2 weeks’ pay
3+ years: 1 additional week per completed year of service, to a maximum of 8 weeks

Severance Pay
-BC’s ESA does not have a separate “severance pay” requirement like Ontario; only termination pay applies unless an employment contract or policy provides more.

Ontario

Layoff Duration & Termination Trigger
-Under the Ontario Employment Standards Act, 2000, a temporary layoff can last:
Up to 13 weeks in any period of 20 consecutive weeks, OR
Up to 35 weeks in any period of 52 consecutive weeks if certain conditions (like benefits continuation) are met.
If the layoff exceeds the permitted limit, the employment is deemed terminated as of the first day of the layoff.

Notice of Termination / Termination Pay
-Based on continuous service:
<1 year: 1 week’s pay
1 year to <3 years: 2 weeks’ pay
3 years to <4 years: 3 weeks’ pay
Up to 8 weeks maximum (same as BC)

Severance Pay (in addition to termination pay)
-Owed if the employee has 5+ years of service AND the employer’s payroll is $2.5M+, OR if 50+ employees are terminated within a 6-month period due to a business closure.
How to calculate: 1 week’s pay per completed year of service (plus partial year pro-rated), up to 26 weeks.

So basically, here are the key differences between Ontario and BC:

In British Columbia, a temporary layoff can last up to 13 weeks in any 20-week period unless certain exceptions apply, and if it goes longer, the termination date is deemed to be the first day of the layoff. Termination pay is based on length of service, capped at eight weeks, and there is no separate statutory severance pay requirement. In Ontario, a temporary layoff can also last up to 13 weeks in any 20-week period, but it can be extended to up to 35 weeks in a 52-week period if specific conditions are met, such as continuing benefits. Termination pay is also capped at eight weeks, but Ontario has a separate severance pay entitlement for employees with at least five years of service if the employer’s payroll is $2.5 million or more, or if 50 or more employees are terminated within a six-month period due to a business closure, with severance pay calculated at one week per completed year of service to a maximum of 26 weeks.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Deduction from Wages – Training Agreement #96810

You’re absolutely right to be cautious. These kinds of training reimbursement clauses can, in certain circumstances, be enforceable in Ontario, but only if they’re carefully crafted and meet specific legal criteria. Let’s break it down succinctly so you can confidently determine how to proceed with the employee’s final pay.

1. Legal Framework in Ontario
A. Written Agreement Required
Ontario’s Employment Standards Act (ESA) does allow wage deductions or reimbursements only if there is a clear, written authorization from the employee, specifying an amount or formula for calculation

B. Renaud v. Graham (Ontario case law)
In Renaud v. Graham, the Court upheld a repayment clause because:
-It was part of a clear, written contract
-The formula for reimbursement was explicit
-The employee signed knowingly without coercion
-The training provided had transferable benefit (enabled real estate practice)

C. Key Conditions for Enforceability
A clause is more likely to be enforced if:
-It’s clearly written and unambiguous (with formula or amount stated).
-Employee fully understood and consented, without coercion.
-The training benefits are transferable—i.e., training gives the employee credentials or skills they take with them
-It’s not a penalty but a genuine pre-estimate of damages

D. When Clauses Fail
If training is mandatory but only benefits the employer, not transferable, or the clause is overly harsh and one-sided, courts may deem it unconscionable or a disguised business cost, and thus unenforceable.

2. What This Means for Your Situation
To determine if you can recover training costs from your resigning employee, ask:
-Do you have a clear, signed training agreement?
-Does it specify the formula or amount of repayment?
-Did the employee knowingly agree, without coercion?
-Did the training impart transferable skills or credentials (e.g., certification)?
-Is the repayment obligation reasonable and proportionate—not punitive?

If the answer is “yes” to all of the above, then based on Ontario case law, especially Renaud v. Graham, the clause may well be enforceable. However, because this is a legal matter, I highly recommend consulting legal counsel.

If the answer is not yes to all of the above, especially if the training was for generic business operations or only benefited your company, the clause may be struck down as unenforceable.

3. Calculating Final Pay
If the clause is enforceable, and the employee resigned before the agreed term:
You may deduct the agreed amount or pro-rated training cost from their final pay—but only if the agreement clearly allows this and it is within a specific formula.

Be sure the deduction is not excessive or punitive; it must align with the contract terms.

If the clause is not enforceable (it might be enforceable in Ontario but this is not guaranteed, due to mitigating factors of clarity, fairness, and mutual benefit), you must treat the employee’s final pay as any standard termination:

Pay all owed wages, including any vacation pay, statutory entitlements, overtime, etc., with no deduction for training.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Manager vs. Senior Manager Criteria #96677

Hi Susie! Of course — I can provide you with a framework that clearly differentiates Manager and Senior Manager roles. Organizations often make this distinction by looking at scope, responsibility, leadership, and strategic impact. If you would like me to tailor this to your specific sector, let me know – but it should apply to most workplaces regardless.

Scope of Responsibility
Manager
-Oversees a specific team or functional area.
-Focuses on achieving departmental goals and operational efficiency.
-Works primarily on tactical execution of organizational strategy.

Senior Manager
-Oversees multiple teams, departments, or a larger portfolio.
-Accountable for broader organizational outcomes, often cross-functional.
-Balances tactical execution with shaping mid- to long-term strategy.

Leadership & People Management
Manager
-Directly supervises staff, providing coaching, performance reviews, and daily guidance.
-Responsible for team morale, workload distribution, and skill development.
-Focuses on individual and team performance metrics.

Senior Manager
-Leads other managers and senior staff, guiding them in leadership and decision-making.
-Influences culture and organizational values beyond their immediate department.
-Acts as a mentor and talent developer for future leaders.

Decision-Making Authority
Manager
-Makes operational decisions within established policies and budgets.
-Recommends improvements but often needs approval for major changes.
-Handles problem-solving related to day-to-day activities.

Senior Manager
-Makes higher-level decisions that impact multiple departments or long-term business goals.
-Shapes policies, budgets, and strategies in collaboration with executives.
-Responsible for resolving complex, cross-functional challenges.

Strategic Contribution
Manager
-Executes the organization’s strategy at the team level.
-Provides input on departmental plans and process improvements.
-Ensures compliance and efficiency.

Senior Manager
-Translates organizational strategy into divisional or departmental action plans.
-Identifies opportunities for innovation and organizational growth.
-Plays a key role in risk management and future planning.

External & Cross-Functional Influence
Manager
-Limited external representation (e.g., vendors or small partnerships).
-Collaborates mainly within their department and with immediate peers.

Senior Manager
-Represents the organization in external partnerships, industry groups, or with key stakeholders.
-Collaborates across multiple departments and influences organization-wide initiatives.

Performance Metrics
Manager
-Measured by team performance, goal achievement, and efficiency.
-Success often tied to project deadlines, budget adherence, and staff satisfaction.

Senior Manager
-Measured by overall departmental/divisional outcomes and contribution to organizational strategy.
-Success tied to revenue growth, organizational impact, innovation, and leadership development.

Many organizations also differentiate by experience and qualifications (e.g., Senior Managers often have 10+ years of relevant leadership experience and broader industry exposure).

I hope this helps!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Manager vs. Senior Manager Criteria #96676

Hi Susie! Of course — I can provide you with a framework that clearly differentiates Manager and Senior Manager roles. Organizations often make this distinction by looking at scope, responsibility, leadership, and strategic impact. If you would like me to tailor this to your specific sector, let me know – but it should apply to most workplaces regardless.

Scope of Responsibility
Manager
-Oversees a specific team or functional area.
-Focuses on achieving departmental goals and operational efficiency.
-Works primarily on tactical execution of organizational strategy.

Senior Manager
-Oversees multiple teams, departments, or a larger portfolio.
-Accountable for broader organizational outcomes, often cross-functional.
-Balances tactical execution with shaping mid- to long-term strategy.

Leadership & People Management
Manager
-Directly supervises staff, providing coaching, performance reviews, and daily guidance.
-Responsible for team morale, workload distribution, and skill development.
-Focuses on individual and team performance metrics.

Senior Manager
-Leads other managers and senior staff, guiding them in leadership and decision-making.
-Influences culture and organizational values beyond their immediate department.
-Acts as a mentor and talent developer for future leaders.

Decision-Making Authority
Manager
-Makes operational decisions within established policies and budgets.
-Recommends improvements but often needs approval for major changes.
-Handles problem-solving related to day-to-day activities.

Senior Manager
-Makes higher-level decisions that impact multiple departments or long-term business goals.
-Shapes policies, budgets, and strategies in collaboration with executives.
-Responsible for resolving complex, cross-functional challenges.

Strategic Contribution
Manager
-Executes the organization’s strategy at the team level.
-Provides input on departmental plans and process improvements.
-Ensures compliance and efficiency.

Senior Manager
-Translates organizational strategy into divisional or departmental action plans.
-Identifies opportunities for innovation and organizational growth.
-Plays a key role in risk management and future planning.

External & Cross-Functional Influence
Manager
-Limited external representation (e.g., vendors or small partnerships).
-Collaborates mainly within their department and with immediate peers.

Senior Manager
-Represents the organization in external partnerships, industry groups, or with key stakeholders.
-Collaborates across multiple departments and influences organization-wide initiatives.

Performance Metrics
Manager
-Measured by team performance, goal achievement, and efficiency.
-Success often tied to project deadlines, budget adherence, and staff satisfaction.

Senior Manager
-Measured by overall departmental/divisional outcomes and contribution to organizational strategy.
-Success tied to revenue growth, organizational impact, innovation, and leadership development.

Many organizations also differentiate by experience and qualifications (e.g., Senior Managers often have 10+ years of relevant leadership experience and broader industry exposure).

I hope this helps!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Long Term Illness Leave in Ontario #96621

Generally across Canada, job protection for a medical leave depends on whether the employee is on a statutory protected leave under the Employment Standards Act (ESA) or an approved employer-specific leave policy.

ESA Sick Leave: BC law entitles employees to up to 5 days of paid and 3 days of unpaid sick leave each calendar year (if they meet the eligibility criteria). This period is far shorter than a month, so your employee has already exceeded statutory sick leave.

Job-Protected Medical Leave: Some provinces (like Ontario) have explicit long-term critical illness or injury leave provisions. In BC, there is unpaid medical leave (up to 36 weeks) if the employee provides sufficient medical documentation. Without medical confirmation, the leave may not qualify as protected.

Key point: To trigger statutory job protection for extended absence, you’re entitled to request medical evidence (e.g., your Functional Abilities Form).

Right to Request Medical Documentation
You are within your rights to require medical documentation to confirm both the need for leave and the estimated duration.

The Functional Abilities Form (FAF) is a standard tool for this. If the employee refuses to provide it (or an equivalent doctor’s note), you are not obligated to continue unpaid, job-protected leave.

Document your request in writing, giving a clear deadline for submission (e.g., “Please provide the completed form by [date] to support continuation of your leave”).

Risk of Termination vs. Accommodation Duties
Without Documentation: If he fails to provide the FAF, you could treat the continued absence as unauthorized leave. In such a case, you may be legally entitled to proceed with filling the position, though doing so carries some legal risk if he later provides medical proof.

With Documentation: If he provides it, you may be required to accommodate up to the point of undue hardship. This may include holding his job or offering a temporary modified duty.

Practical Guidance:

Do not terminate immediately. Instead, put him on notice that without medical documentation, his absence cannot be considered job-protected.

Retain all communication records to show that you gave him ample opportunity to comply.

Best Practices Right Now
Formal Written Request: Send a letter/email requesting the Functional Abilities Form by a set deadline.

Clarify Expectations: State clearly that failure to provide the form may result in the leave being considered unauthorized.

Document Everything: Keep all correspondence in case of dispute.

Avoid Premature Replacement: While you may begin contingency planning, filling the role permanently without exhausting this process could expose you to a claim of wrongful dismissal or failure to accommodate.

Bottom Line:
At this stage, you are not automatically required to protect his job beyond the ESA minimums if he refuses to provide medical documentation. However, you must give him a clear chance to comply before taking steps to replace him. If he continues to be vague and does not provide a Functional Abilities Form (or other medical evidence), you could justifiably consider the absence unauthorized and move forward.

Hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Time Off in Lieu of OT Time #96264

In Ontario, employers have certain legal obligations regarding overtime pay, even when overtime (OT) is not pre-approved. However, the situation you describe is complex and touches on multiple issues—legal obligations, policy clarity, and practical enforcement. Here’s a detailed breakdown:

1. Legal Framework: Overtime Pay in Ontario
Under the Employment Standards Act, 2000 (ESA) in Ontario:

Overtime threshold: Employees are entitled to overtime pay (1.5 times the regular rate) for hours worked beyond 44 in a workweek.

No distinction between remote/in-office work: All time worked, regardless of location, counts toward overtime.

Obligation to pay even if not pre-approved: If an employee actually worked overtime, the employer is generally required to pay for it—even if it was not pre-approved—unless the employer can show that they did not know or ought to have known that the work was being done.

That said, you can discipline employees for working unauthorized hours if your expectations are clearly communicated.

2. Practical Application in Your Scenario
A. Timesheet Vagueness and Delay
Timesheets going back to January of the previous year raise serious concerns about timeliness, accuracy, and credibility.

You are not obligated to honor undocumented or retroactive claims—especially if the recordkeeping is vague and the claims are unusually high (e.g., 14–16 hours/day, 100+ OT hours).

B. Communication and Policy History
You mention the employee was previously informed (in writing) that overtime must be pre-approved.

Even though this was “years ago,” if there has been a consistent expectation or culture of approval, and if you recently re-communicated it verbally, you may be able to argue the lack of employer authorization for recent claims.

However, verbal communication is weaker; it’s advisable to follow up in writing and reaffirm that pre-approval is required.

C. No Formal Policy
The lack of a formal OT policy does weaken your position slightly, but not fatally.

In its absence, employers are still bound by the ESA but can mitigate risk through clear documentation, consistent practice, and enforcement of expectations.

3. Recommended Steps
A. Assess Whether Work Was Actually Performed
If the employee worked without direction or necessity, and the work product doesn’t reflect the hours claimed, you may dispute the validity of those claims.

However, if you had reason to know about the extra hours (e.g., emails sent at odd hours, deliverables received late at night), ESA could interpret that as tacit approval.

B. Establish Documentation
Review any records, communications, and outputs that might corroborate or refute the claimed OT hours.

Consider having the employee submit a detailed breakdown of hours, tasks performed, and expected outputs for review.

C. Implement a Written Overtime Policy
To prevent future disputes:

Require written pre-approval for overtime.

Set boundaries for remote work hours and time tracking expectations.

Train staff and supervisors on the limits of discretionary time and clarify what qualifies as compensable work.

D. Consider Legal Counsel
Given the volume of hours and potential liability, you may wish to consult an employment lawyer to:

Review how best to handle this particular claim.

Draft or review your overtime, remote work, and timekeeping policies.

Ensure compliance while protecting the organization from inflated or unsubstantiated claims.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Medical Leave/Recall #95802

Since you’re federally regulated in Canada, the Canada Labour Code (CLC) governs your employment practices, including recall rights and medical leaves. Here’s a breakdown of your options and obligations:

1. Medical Inability to Return to Work
If the recalled employee has provided valid medical documentation showing they are temporarily unable to return to work, you cannot terminate their employment solely on that basis. Under the CLC:

Employees have protection from dismissal due to illness or injury, particularly if they are on a medically certified leave.

The law requires employers to accommodate medical leaves, unless doing so would cause undue hardship.

This means the employee remains employed but on a medical leave status.

2. Recall Rights During Medical Leave
Recall rights are not automatically forfeited just because the employee is unable to return right now:

If the employee was recalled but is medically unable to report, you should document the refusal as medical leave rather than abandonment or refusal of work.

Their place on the recall list may remain “frozen” until they are medically cleared to return.

This approach avoids discrimination under the Canadian Human Rights Act, which protects against termination due to disability.

3. Can You Move to the Next Person on the Recall List?
Yes. Since the recalled employee is unavailable:

You may move to the next qualified person on the recall list to fill the position in the interim.

The original employee’s recall rights remain intact, assuming their medical condition is temporary and recovery is expected.

4. When Can Termination Be Considered?
Termination may only be lawful if:

The medical condition results in a permanent inability to work, and

You’ve engaged in a thorough accommodation process, and

You can demonstrate undue hardship if accommodation is not feasible.

You must have clear, ongoing documentation and communication with the employee. Terminating recall rights prematurely would likely be seen as discriminatory and could expose you to legal risk.

Recommended Steps
-Acknowledge the medical documentation and maintain the employee’s status as “on leave.”
-Communicate clearly in writing that their recall is deferred due to medical reasons.
-Move to the next person on the recall list for operational needs.
-Continue to monitor the employee’s medical status and request periodic updates.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Termination in Probation #95741

You’re on the right track in your current approach, but it’s wise to ensure that your termination practices during probation are aligned with employment standards and minimize legal risk. Here’s a detailed breakdown tailored to the skilled trades context in Canada:

1. Probationary Period: Legal Framework
In most provinces, a probationary period typically lasts up to 3 months (90 days) from the start of employment. During this time:

The employee may be terminated without notice or pay in lieu, provided the employer complies with minimum standards legislation.

If the probation period is extended (e.g., 6 months), employment standards still require notice or pay in lieu after the statutory probation (usually 3 months).

Statutory Law
Applicable laws depend on your province, but here are common elements across most jurisdictions (like BC, Ontario, Alberta):

No notice is required if termination occurs within 3 months and there is no just cause.

Beyond 3 months, minimum notice (or pay in lieu) is required, even during an extended “probationary” period.

2. Absenteeism During Probation: Termination Risk
Although you can terminate without notice during statutory probation, you still must not violate human rights laws. That means you:

Cannot terminate due to a protected ground, such as disability (which could be flagged if absenteeism is due to illness).

Should document attendance issues clearly and neutrally to show the decision was business-related and not discriminatory.

If absenteeism is not medically or otherwise legally protected, then:

-A written attendance reminder followed by termination if there’s no improvement is a sound approach.

-Avoid citing “failure to complete orientation” if absenteeism is the core issue—stick with clear language tied to attendance expectations.

3. Progressive Discipline vs. Immediate Termination

Progressive discipline is a best practice for long-term employees but not legally required during the probation period, unless:

Your employment contract or company policy requires it (which would create enforceable expectations).

The behaviour does not justify immediate termination.

That said, having even minimal documentation (e.g., one written warning) can help defend against wrongful or discriminatory termination claims.

4. Reducing Litigation Risk

To mitigate risk:

-Use clear language in contracts that defines the probation period and states that employment may be terminated without notice during this period.

-Ensure attendance policies are included in onboarding materials, and employees sign off.

-Maintain non-discriminatory, well-documented reasons for termination decisions.

-Consult with employment counsel before termination if there is even a hint that absenteeism could be tied to disability or protected grounds.

5. Industry-Specific Considerations
In the skilled trades:

-Training and safety are valid business justifications for strict attendance expectations.

-Absenteeism can reasonably be considered a failure to meet conditions of employment—especially if proper training is missed.

-Your PMs’ desire to move quickly to termination is understandable, but you should ensure the reasons are consistent and documented, even during probation.

Recommended Best Practices
-Reinforce attendance expectations clearly in orientation and in job postings.

-Issue a written reminder or informal warning as soon as absenteeism occurs—even if still within the first few days.

-Track absences and reasons given.

-Terminate during statutory probation if there’s no protected ground involved and improvement does not occur.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Seeking HR Mentor #95590

Hi Nadine, I highly recommend checking out our HRInsider webinars to brush up on your HR knowledge, but we do not provide HR course training or official certificates. LinkedIn learning provides great refresher courses!

Hope this helps.
-HRInsider Staff

[Haley O’Halloran]

in reply to: On-Call at Home – Pay Policy #95528

Hi Aleesha!

You’re right to look closely at how BC’s Employment Standards Act (ESA) minimum daily pay rules apply in complex scheduling scenarios like on-call work following a full shift. Here’s a breakdown of how this may apply in your example:

Under Section 34 of the BC Employment Standards Regulation, the “minimum daily pay” or “reporting pay” rule states:

If an employee reports to work and works less than their scheduled shift, they must be paid for at least two hours, or four hours if scheduled for more than eight hours, unless:

The work is suspended due to circumstances beyond the employer’s control.

On-call work typically only counts toward this reporting pay minimum if the employee is called in and performs work (i.e., not simply being on standby).

Your Scenario: Dispatcher Working + On-Call
You described a dispatcher who:

-Works an 8-hour regular shift.

-Then goes on-call for another 8 hours (4:00 p.m. to 12:00 a.m.).

-Gets called in during the on-call window.

The ESA doesn’t explicitly distinguish how minimum pay applies to “called in” work after a shift ends, so interpretation often depends on case-by-case factors. But here are the main considerations:

Pay Obligation When Called In
Option 1: Pay 2 Hours Minimum Per Call-In
If the call-in is brief (e.g., 30 minutes), and the employee is not scheduled for a second 8-hour shift, but just “on-call”:

You likely owe 2 hours’ minimum pay per call-in (Section 34(1) of the Regulation).

Option 2: Pay 4 Hours If Treated as a Scheduled Shift
If the employee was pre-scheduled to be on-call for 8 hours, and you treat it as a defined second shift, then:

The call-in could be considered part of a scheduled 8-hour shift, so 4 hours minimum may apply if they work less than 4 hours.

However, this hinges on whether the on-call period is considered “scheduled work” under the ESA.

In practice:

The on-call period itself does not count as time worked unless the employee is called in.

Only the hours actually worked (due to a call-in) trigger the reporting pay rule.

Practical Approach
If the dispatcher receives one call during the on-call window, and works less than 2 hours: pay 2 hours minimum.

If they receive multiple call-ins, or work several short shifts during the on-call block:

ESA is silent on cumulative call-ins, but many employers pay 2 hours per call-in, unless calls are continuous (i.e., the work stretches longer).

Recommendations
Clarify internal policy on on-call scheduling—are these blocks considered scheduled work?

Ensure your practice is internally consistent and clearly documented in case of audit or complaint.

Since ESA enforcement can vary by case, you’re absolutely right: getting legal review on your policies is a smart step.

Best of luck with getting started, I’m here if you have any more questions!

-HRInsider Staff

[Haley O’Halloran]

in reply to: On-Call at Home – Pay Policy #95525

Of course! This is, as mentioned, a detailed topic that requires some legal attention, so while I recommend consulting specific questions like these with a lawyer, I can still provide some guidance on your query:

You can specify a “work window” longer than 2 hours (e.g., 3 or 4 hours), but doing so comes with legal and practical risks under the BC Employment Standards Act (ESA) that should be carefully evaluated.

1. Definition of “Reporting for Work”
Under the ESA:

“Reporting to work” includes remote duties if they require an employee to actively perform job functions (e.g., a dispatcher coordinating emergency responses).

Each instance of “reporting for work” may trigger a new 2-hour minimum pay requirement unless part of a continuous block of work.

2. Risk in Extending the Window
The ESA doesn’t define an exact duration for what constitutes a single report or a “block of work.” Therefore:

A 2-hour grouping aligns with the ESA’s minimum standard and is generally seen as a defensible interpretation.

Expanding to 3 or 4 hours increases legal risk, particularly if the calls are sporadic, require significant employee attention, or occur after a long uninterrupted rest.

3. Jurisprudence and ESA Guidance
Courts and arbitrators typically look at:

Whether the calls are part of an uninterrupted chain of related tasks.

The degree to which the employee’s time is restricted or disrupted.

Whether the employee can reasonably return to personal activities between calls.

If, for example, an employee is called at 10:00 PM and again at 1:30 AM:

A 4-hour window might seem to group both under one report, but the employee may have had time to go back to sleep or resume personal activity in between.

Treating it as one call-out could be interpreted as non-compliant.

Recommendation
If you wish to define a “work window”:

Use 2 hours as the default grouping window, in line with ESA minimums.

You may extend this slightly (e.g., up to 3 hours) if:

You clearly define it in policy.

You document call logs precisely.

The calls are operationally related or tightly spaced.

Avoid 4-hour windows unless there’s a compelling operational justification and legal backing.

You might use wording such as:

“Calls received within 2 hours of the initial on-call engagement will be considered part of the same call-out period for purposes of minimum pay. Calls received after this window will be treated as separate call-outs and subject to a new two-hour minimum pay, if job duties are performed.”

Risk Mitigation
Keep detailed logs of all on-call activity, including timestamps of calls and actions taken.

Allow exceptions or overrides if a later call is significantly disruptive or unrelated to the first.

Have the policy reviewed by legal counsel with experience in BC employment standards.

While the ESA is silent on the precise duration that defines “a report for work,” any policy that reduces entitlements below the ESA’s intention—especially where duties are performed—should be conservative and well-documented to withstand scrutiny.

-HRInsider Staff

[Haley O’Halloran]

in reply to: On-Call at Home – Pay Policy #95520

You’re absolutely right to seek clarity here—on-call pay policies can be challenging to align with employment standards, particularly in British Columbia, where laws under the Employment Standards Act (ESA) have specific provisions for hours of work, rest periods, and compensation. Here’s a breakdown of your questions and relevant legal considerations:

1. Two-Hour Minimum Pay Requirement for On-Call Shifts
Your Proposal:
You want to apply the two-hour minimum pay only to the first call received during an on-call window (e.g., 10 PM–7 AM). Subsequent calls within or outside the initial two-hour block would be paid only for the actual time worked, potentially at overtime (OT) rates if applicable.

Legal Consideration:
Under BC’s ESA, when an employee reports for work, even if sent home immediately, they are entitled to a minimum of 2 hours’ pay (or 4 hours if scheduled for more than 8 hours), unless the work is suspended due to reasons beyond the employer’s control (like a power outage).

The key term is “reporting to work”, which has generally been interpreted to include remote work or phone-in/on-call duties, depending on how disruptive they are.

If a dispatcher must take a call and perform job duties (e.g., coordinating responses), they are likely “reporting to work.”

Therefore, each separate call that requires actual work could potentially be interpreted as a separate “report,” especially if spaced apart by several hours.

Your Policy Proposal Legality:
Risky. Stipulating that only the first call in a shift qualifies for the 2-hour minimum may conflict with ESA if later calls require actual work. You might reduce legal risk by:

Clarifying that “calls within a continuous block of work are treated as part of the same call-out period”.

Using reasonable spacing guidelines (e.g., all calls within 2 hours are one report).

2. 24-Hour On-Call Shift – Are They “Working” the Entire Time?
Your Question:
Is an at-home dispatcher on-call from 8 AM to 8 AM (24 hours) considered “working” the entire time?

Legal Consideration:
No, not automatically. Being “on-call” does not equal “hours worked” unless:

The employee is restricted in a way that prevents them from using the time freely (e.g., required to stay at home and respond within a few minutes).

ESA and jurisprudence focus on the degree of control and interruption.

If the dispatcher can sleep, run errands, and generally go about personal activities, then only the actual time spent working (taking calls) is compensable.

Your Policy:
Stating that only one call per 24-hour period triggers the two-hour minimum is highly problematic unless you can guarantee that all other time is truly unrestricted and that subsequent calls are de minimis or non-disruptive. Multiple substantive call-outs during a shift would likely need to be treated as separate events.

3. Section 36(2) – 8 Hours Free from Work Requirement
Your Question:
Does at-home on-call duty count as “working time” for purposes of the required 8 consecutive hours of rest before the next shift?

Legal Consideration:
Yes, if they perform work during the on-call period, that time counts toward total hours worked. Therefore:

If someone works 8 hours during the day, gets called during their on-call period (say, from 2 AM to 3 AM), and is then asked to return to work at 8 AM, they may not have had 8 consecutive hours off, violating Section 36(2).

Section 36(2) requires at least 8 consecutive hours free from work between shifts unless an emergency or exception applies.

Implication:
You must track when the employee was actually working and ensure that 8 hours of uninterrupted off-duty time is provided before their next scheduled shift, or risk a non-compliance issue.

Recommendations
Structure Your Policy Around Actual Work Performed:

Document how calls are logged and when they start/end.

Define a “report for work” window clearly and reasonably (e.g., grouping close-together calls).

Pay Two-Hour Minimum for Each Distinct Work Period:

If work is performed hours apart, it’s safest to assume they’re separate and should be paid accordingly.

Respect ESA Section 36:

Ensure employees get 8 consecutive hours of rest after any period of work, including on-call duties, before their next scheduled shift.

Seek Legal Review:

Before implementing the policy, have it reviewed by a BC employment lawyer or HR consultant experienced in ESA compliance.

This last part is the most important – I cannot provide legal advice so seeking out legal counsel and an HR director to help you navigate this complex situation is key. Best of luck and I hope this information leads you down the right path!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Salaried OT #95503

This is a nuanced situation involving the intersection of employment contract terms, overtime eligibility, and managerial exemption status under employment standards legislation. Here’s a structured breakdown to help guide your response and potential next steps.

1. Overtime Entitlement Under the BC Employment Standards Act (ESA)
In British Columbia (assuming your organization operates under the BC ESA), overtime pay is required unless an employee meets certain exemption criteria.

General Overtime Rules:
Employees must be paid time-and-a-half after working 8 hours in a day and double time after 12 hours in a day.

For weekly overtime: time-and-a-half after 40 hours in a week.

Salaried Status:
Being salaried does not automatically exclude an employee from overtime pay. What matters is job duties, not the method of compensation.

2. Managerial Exemption
The ESA exempts managers from overtime if they primarily perform managerial or supervisory duties. The Act defines a “manager” broadly, but in practice:

An employee is only exempt from overtime if managing is their principal function—not simply because they perform some managerial tasks.

Criteria (based on ESA Policy Interpretation Manual):
The employee directs the work of other employees, makes disciplinary decisions, hires/fires, or directly represents the employer.

The employee has the authority to make independent decisions about matters of significance.

Occasional supervision or a “lead hand” role is not enough for exemption.

So if your employee only meets “some” of these criteria and also regularly performed physical or routine work, they may not qualify as exempt, making them entitled to overtime.

3. Contractual Considerations
You mentioned the employment contract states 9-hour days. If that was a flat schedule (e.g., no mention of OT pay or averaging agreement), and the employee consistently worked beyond those hours, then the ESA’s daily and weekly overtime provisions may apply.

If there was no written averaging agreement under the ESA, allowing workdays to exceed 8 hours without triggering OT, then overtime is likely owed for any hours over 8/day or 40/week.

4. Out-of-Town Work and Tracking Hours
You noted the employee worked out of town. This complicates matters:

Travel time to a remote worksite may count as work time, especially if travel is outside of the regular commute.

If the employee was effectively “on duty” for extended periods (e.g., being responsible for safety or site operations at all times), this may strengthen their claim.

However, the onus is on the employee to substantiate the overtime claim with credible time records or corroborating evidence (emails, reports, witness statements, etc.).

5. Next Steps and Risk Assessment
Short-Term:
-Assess whether the employee truly meets the ESA definition of “manager.”
-Review the employment contract for clauses about hours of work, overtime, averaging agreements, or waivers (although waiving OT rights is not enforceable under ESA).
-Request evidence of the claimed 500 OT hours and cross-check with project logs or supervisor notes.

Medium-Term:
Consider consulting with an employment lawyer or HR consultant to:

-Evaluate liability risk
-Determine possible settlement or remediation strategies

Review and revise employment contracts for future hires to:
-Clarify OT eligibility or exclusions
-Include ESA-compliant averaging agreements if needed

Based on your description, there is a strong chance this employee is entitled to overtime, unless:

They were truly a manager under ESA standards, and a valid averaging agreement was in place.

A careful legal review is recommended before rejecting or accepting the full 500-hour claim. Ensure to consult with a legal professional and HR director before moving forward. I hope this helps!

-HRInsider Staff

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