THE QUESTION
I work as a server at a restaurant in Toronto that schedules me for on-call shifts. Their policy is to let us know three hours before the shift starts if we’re needed. But if the on-call shifts are cancelled, we don’t get any compensation. Is this legal? It seems unfair that I have to keep those days available. Should we be paid to be on-call?
THE FIRST ANSWER
Shibil Siddiqi, employment and human rights lawyer, Progressive Barristers, Toronto
While the circumstances described may be unfair, they are typically not illegal. In Ontario, employers are generally not prohibited by law from requiring employees to be on-call or from cancelling shifts on short notice without compensation, provided the employees are not obliged to remain at the workplace during this time.
Under Ontario’s Employment Standards Act Regulation 285/01, on-call status may constitute compensable work if an employer mandates employees to “remain at the place of employment” and be ready for immediate duty. However, this provision does not apply if employees are not required to be present at the workplace while on-call.
It is worth noting that the ESA sets out a “three-hour rule”. This generally requires employers to pay a minimum of three hours of pay if an employee’s shift is cancelled or shortened after they report to work, and provided the employee typically works more than three hours. This rule does not apply where a shift is cancelled or shortened prior to the employee reporting for work.
Some employment agreements may outline specific hours of work, and employers may be obligated to compensate employees accordingly. Employees may also have recourse to claim constructive dismissal if the employer fundamentally breaches the employment contract regarding working hours. Such claims can be complicated, and it would be worth seeking legal advice before taking any action.
As an aside, Bill 148, enacted in Ontario in 2017, mandated three hours of pay if an employer cancelled an employee’s shift with less than 48 hours’ notice. Unfortunately, the Making Ontario Open for Business Act, passed in 2018, repealed this provision.
THE SECOND ANSWER
Menachem Freedman, lawyer, HHBG Lawyers – Employment Justice, Vancouver
In a perfect world (for workers, at least), there would be a bright line separating our work lives and our personal lives. On-call time is an example of where that distinction breaks down. On the one hand, you are not actively at work. On the other hand, your time is not fully your own, and you’re expected to drop everything if you’re needed. Depending on the jurisdiction you are in, this ‘grey area’ of work is treated differently. For right now, there is generally no right to be compensated for being on-call in Ontario.
This wasn’t always the case. In 2017, the Wynne government passed the Fair Workplaces, Better Jobs Act, which included a number of new protections for workers, including minimum pay for on-call workers. However, this guarantee, as well as many other features of that law were repealed by the Ford government in 2020 through the Making Ontario Open for Business Act after criticism from the restaurant industry and others.
Today, in jurisdictions such as Ontario and B.C., non-unionized employees are not entitled to compensation for time spent on-call in most circumstances, unless there is a specific term in their contract that says otherwise. One important exception is unionized employees: many unions, by using the power of collective bargaining, have negotiated additional protections for their members that go above and beyond the minimums required in employment legislation. These protections can include pay for time spent on-call, a minimum amount of pay guaranteed for on-call work or a right to refuse on-call shifts.
For those workers not under a collective agreement, the changes that occurred between 2017 and 2020 in Ontario demonstrate that their rights may be subject to the government in power and to changing political positions on the proper balance between the rights of workers and employers.
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Andrea Yu