An employee reports for duty as scheduled, but there is no work for him. After being asked to wait 30 minutes, he is sent home — how many hours of work is this?
By Alan McEwen
Consider the following scenario: Robert reports to work for his regular eight-hour shift on Tuesday morning.
He works in shipping and receiving for a small manufacturer. It's year-end and the company is doing its annual inventory, so no goods are being received or shipped that morning. Stock taking was supposed to have been finished overnight, but it's taking longer than expected, so there is no shipping or receiving work to be done. After being asked by his employer to wait for 30 minutes, Robert is sent home without actually doing anything. Robert's regular hourly rate is $14.50.
There are really three separate questions here:
• What are Robert's actual hours of work in this situation?
• How much must Robert be paid for this day?
• Lastly, of these what are the insurable hours and earnings for EI purposes? Assume the Ontario employment standards apply, since they are fairly representative in this context.
Let's start with how much Robert must be paid for reporting to work. This is termed call-in or reporting pay. In Ontario, employers must provide at least three hours call-in pay, at the minimum wage, currently $10.25 an hour, meaning Robert must be paid at least $30.75 for that day.
In effect, Robert could be paid 2.25 hours, at his regular rate, to meet this requirement (2.25 at $14.50 an hour is $32.63, more than the call-in pay requirement). Six of the Canadian employment standards jurisdictions define call-in pay in terms of the minimum wage (Alberta, Saskatchewan, Ontario, New Brunswick, Nova Scotia and Newfoundland and Labrador), while the rest define call-in pay in terms of the employee's regular hourly wage. For example, in Quebec, Robert would have to be paid a minimum of $43.50 (three hours at $14.50).
If Robert's minimum gross pay for the day is $30.75, what are the corresponding hours of work? Robert, never actually performed services that Tuesday, but was asked by his employer to wait for 30 minutes to see if other work could be found. This means there are really two separate questions. One, is the minimum call-in pay threshold “work?” Two, is the time spent waiting “work?”
In Ontario, as in almost every other jurisdiction, the minimum threshold for call-in pay does not translate into hours worked. Only in New Brunswick are the minimum call-in pay hours regarded as paid working time. This means, that for overtime and statutory holiday purposes, call-in pay hours don't count as days worked or against daily or workweek overtime thresholds, except in New Brunswick.
However, in N.L. and the Yukon, even if call-in pay hours don't count towards overtime thresholds, once those thresholds have been met, call-in pay is required at overtime rates. For example, in N.L. the weekly overtime threshold is 40 hours. If a N.L. employee is called into work, after having already worked 40 hours that workweek, and is sent home without working at least three hours, the employee must be paid at least $45 (3 hours at $10 an hour, at time and a half).
By contrast, in every employment standards jurisdiction, the time spent waiting, when required on the employer's premises and at the employer's request, is paid working time. These hours do count toward overtime thresholds and do count as days worked.
In B.C., statutory holiday pay is a total of the earnings in the 30 calendar days prior, divided by a count of the days worked within these 30 days. If Robert had been subject to these B.C. employment standards, and this Tuesday was less than 30 days prior to a statutory holiday, that day would count as a day worked, because of the waiting time. In Ontario, statutory holiday pay is based on a fixed number of 20 days, so the waiting time doesn't affect statutory holiday pay in the same way.
It's important to understand regular pay owing for the waiting time doesn't change the minimum amount Robert must be paid for the Tuesday itself. If the call-in pay and waiting time on this day were the only earnings in the pay period, the employer could show on Robert's pay stub:
•30 minutes at $14.50 an hour, or $7.25; and
•call-in pay at $23.50 ($30.75 less $7.25).
That equals total gross pay of $30.75, the same as would be owing if no waiting or work had occurred.
What if any of the above is insurable for EI purposes?
Both the call-in pay and the paid waiting time are insurable earnings. For insurable hours, we have to distinguish between New Brunswick and all other jurisdictions. In New Brunswick, where call-in pay is “work,” there are three insurable hours for that day. In all other jurisdictions, where the call-in pay threshold is not “work,” there are no insurable hours unless employees either actually perform services or are deemed to work during any time spent waiting. For example, if Robert had actually worked an hour before being sent home, there would be one insurable hour.
Alan McEwen is a payroll consultant and freelance writer with 20 years' experience in all aspects of the industry. He can be reached at firstname.lastname@example.org, (905) 401-4052 or visit www.alanrmcewen.com for more information.