By Alan McEwen
Hourly paid employees have to get paid for each hour they work. You wouldn’t think there could be much controversy over that.
However, like many other aspects of payroll, the devil is in the details and here the details are the definition of “work” — meaning the time for which hourly paid employees must be paid.
Paying employees for the time they work is such a basic concept that very few jurisdictions have tried to define “work” versus other time that employers don’t have to pay employees for. Yes, most jurisdictions do have specific rules around call-in or reporting pay, but apart from this Ontario is the only employment standards jurisdiction with a formal definition of what is and is not “work”.
The Ontario employment standards definition of work (reg. 6) has two parts: one, inclusions and two, exclusions
There are two inclusions:
• where employers "permit” or “suffer” work to be done, including work that is done in defiance of express limits imposed under the terms and conditions of employment, such as overtime hours that are supposed to be approved in advance
• where employees are required to remain on the employer’s premises, either waiting for work to start or on a break from work
There are four exclusions:
• when employees are entitled to meal breaks (the required 30 minute break for each five hours worked)
• when employees are allowed to take six hours or longer to rest, in sleeping quarters provided by the employer
• when employees are allowed to take time off for non-work related purposes
• when employees are waiting for a call to work, at other than the place of work.
Let’s test the above against the following circumstances. Employees work 12 hour shifts. During each shift, employees are given two 45-minute meal breaks. The work performed is responding to in-bound calls at a call centre. To answer these calls, employees are required to wear headsets. During their meal breaks, employees may not leave the premises, must wear their headsets and must be prepared to answer the telephone, as required by call volumes.
Are these employee meal breaks paid working time?
First we look at the inclusions. The inclusion above, for employees on break and required to stay on the employer premises, would mean that such employees are at “work” during these breaks. However, this is offset by the exclusion that says this inclusion doesn’t apply to meal breaks required under the Ontario employment standards. In the Ontario definition, the exclusions listed above take precedence over the inclusions
So, does this mean that because these were meal breaks required under the Ontario employment standards, it is not paid working time?
Reaching this conclusion would be to miss one of the key aspects of the definition of work in the Ontario employment standards. When governments want to define something absolutely, they use the word “means.”
For example, the definition of “public holidays” (statutory holidays) in the Ontario employment standards is: “public holiday means any of the following,” followed by a list of specific days, such as Christmas. Because the term “means” was used, you don’t have to look anywhere else to understand what statutory holidays in Ontario are. In an absolute sense, these holidays are the list provided.
This is not how work is defined in the Ontario employment standards. In this definition, both the inclusions and exclusions are on top of and do not replace any pre-existing definition of work. In a literal sense the inclusions are deemed to be work and the exclusions are exemptions from this deeming, rather than exemptions from work itself. What are listed in the exemptions can still be work, if that’s the conclusion reached, based on the terms and conditions of employment, as generally understood in payroll, as defined in common law or as determined based on judgement or common sense.
In the example above, I would argue that three factors lead to the conclusion that these meal breaks are paid working time:
•employees can’t leave the premises
•they must wear their headsets during these breaks
•they must be ready to answer telephone calls as required.
If you consider that the essential work performed is answering telephone calls, the requirement to be ready at any time to answer a call, means, in my view, that this time is work. It’s a question of judgement, based on the circumstances, rather than something stemming from the Ontario employment standards definition of work.
Alan McEwen is a payroll consultant and freelance writer with over 20 years' experience in all aspects of the industry. He can be reached at email@example.com, (905) 401-4052 or visit www.alanrmcewen.com for more information.