THE QUESTION
I work remotely for a call centre. I am paid hourly and the system only logs time after a customer picks up the phone. That means if someone doesn’t answer their phone, I don’t get to bill it as “work”. I’m only earning about three-quarters the amount that I thought I would be in one workday. They actually wrote this rule into their contract, but to be honest I didn’t read the contract carefully enough. Is it legal for a call centre to pay their employees in this manner?
THE FIRST ANSWER
Jason Edwards, labour and employment lawyer, Pink Larkin, Halifax
Usually, an employee who is paid an hourly wage must be compensated for any time they spend working. If the employee’s time is occupied with a task assigned by their employer, and the employee is not free to do whatever they please, they are working. That would normally include the time the employee is stuck sitting in front of their monitor, literally tethered to the computer by a headset, waiting for calls to come through.
It sounds like your employment contract provides for a wage structure that distinguishes exactly what activity will be considered work for the purposes of your wage. If your total pay divided by total hours worked – for example, time spent on calls and sitting waiting for calls – is more than minimum wage, the contract clause may be enforceable.
Frankly, this might not be a fair and reciprocal employment relationship. If you feel that you have the bargaining power, you could try to negotiate a better wage structure. In the alternative, you could consider looking for an employer that adequately values your time.
In the future, I advise you to read any offer of employment carefully to ensure you understand the terms and conditions before you start working. You should make an accurate appraisal of your prospective income to determine if a job is worth your time and energy.
THE SECOND ANSWER
Jonquille Pak, lawyer and founder, JPAK Employment Lawyers, Toronto
This arrangement may not be legal in certain circumstances. If you are a call-centre representative, you are probably earning an hourly rate that is at or close to minimum wage. In Ontario, for example, employment standards legislation entitles you to earn at least minimum wage for all hours worked, including all of the time that you are carrying out your job duties, whether or not you successfully connect with a customer. It is the employer’s responsibility to record all time worked, not just the time you engage with a customer.
Even though this is technically work time, an employer does not have to pay employees for every minute or hour worked, so long as during every pay period, the employee is earning at least minimum wage on average. In other words, if you multiply all of the hours that you work in the pay period by the minimum wage, and you are earning more under this contractual arrangement, this is permitted.
If, however, the employer’s discounting of your work time results in you earning less than minimum wage on average, this is unlawful. You can file a complaint with your provincial Ministry of Labour and the employer should be ordered to pay you the difference. Even if you signed on the dotted line, the contract is not an adequate defence to pay you less than minimum wage, because an employer cannot contract out of the minimum requirements of employment standards legislation. To best protect yourself in these circumstances, ensure that you are keeping your own independent records of all the time you work.
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Andrea Yu