Is on-call on the way out?

Push for fairer scheduling practices in U.S., Ontario puts on-call shifts under microscope
By Liz Bernier
|Canadian HR Reporter|Last Updated: 10/20/2015

Jobs in the retail and hospitality sectors aren’t generally lauded for being stable and predictable — but unions and labour activists are trying to change that. 


Fairer scheduling practices, advance notice of shifts, even guaranteed minimums for work hours are among the recent recommendations from advocates — and some employers are sitting up and taking note. 


After an inquiry by New York’s attorney general into the legality of on-call shifts at 13 large retail employers, the Gap announced in August it would be ending on-call shifts altogether and would provide 10 to 14 days’ notice of work schedules for employees. 


“This is something that we’re increasingly seeing being examined in the United States. So states like Massachusetts and Oregon and I think most notably New York have really taken a lead in examining fair scheduling practices, and some of the more, I would say, inhumane aspects of the on-call workplace,” said Andrew Langille, a labour lawyer and advocate based in Toronto. 


“What’s happened in New York recently is the attorney general was pursuing legal action against some of the big retail players, and was able to extract some promises out of them. And this is something that we’re seeing reflected in Canada.” 


After the Gap’s announcement, the issue started to gain more traction and media attention, according to Angelo DiCaro, a Milton, Ont.-based researcher for the union Unifor specializing in retail and hospitality sectors. 


Unifor has been negotiating fairer scheduling practices with management at grocery stores such as Metro, he said. 


“It’s taken some negotiating (but) I think the employers have been receptive to these proposals.” 


But only a sliver of the retail industry is heavily unionized, and that tends to be in supermarkets, said DiCaro — so there’s a need for legislated standards around fair scheduling. 


‘Gaping hole’ in employment standards

On-call shifts aren’t always misused by employers and in some industries, they can be necessary and expected, said DiCaro. 

“The challenge, though, and what we’re hearing, is (about) using on-call scheduling in more of an abusive way, where people are told, ‘We may not actually tell you when you’re scheduled — we just want you to sit by the phone and we may call you, we may not call you.’ And that part of the concept of on-call is not totally fair,” he said. 


“For instance, we’ve negotiated contract language that sets rules about how people are called in… (but) on the other side of it, there’s a gaping hole in labour laws for workers especially that don’t have unions.”


There is nothing in any provincial employment standards act that guards against it, he said, so it’s a perfectly legal practice for employers.


But it’s high time for change, said Langille. 


“People really can’t plan their lives if they’re at the beck and call of their employer. It’s hard to arrange child care, it’s hard to arrange schooling and it’s hard to schedule shifts for other part-time jobs that the people might have. Because often what we’re seeing in retail and in the service industries is multiple jobs — that’s the reality as a way for people to make ends meet, because the wages are so incredibly low these days for service industry workers.” 


For many workers, especially in the private sector, provincial laws are their only protections — and legislation serves as a “floor” that establishes the minimum deemed acceptable, said Kendra Coulter, associate professor at the Centre for Labour Studies at Brock University in St. Catharines, Ont. 


“Both inclusions and silences speak volumes. Most provinces’ employment standards acts are completely silent on scheduling notice,” she said. 


“Unfortunately, it is now very common for both full- and part-time workers in sectors like retail (Canada’s largest employment sphere) to be required to keep open, week-long availability, and yet to only get notice of their shift a day or two in advance, or even to be called in on the same day — and to be given no guarantee of a minimum number of hours. They might wait all week and get no work.” 


There isn’t a lot of data to show how pervasive this actually is, said DiCaro. 


“Anecdotally, it seems to be becoming a dominant narrative in the sector, and certainly that has to change.”


Examining the nuances 

Change may come sooner rather than later in Ontario, which is undertaking a workplace review with an eye on potential changes to employment standards and labour laws. 


But any changes would need to take into account the nuances of on-call scheduling and the different challenges employers in different sectors may face, said Liam McGuinty, manager of policy and government relations at the Ontario Chamber of Commerce in Toronto. 


“As (the provincial government is) considering changes, our overall message is ‘Consider what the impact will be on Ontario’s competitiveness,’” he said. “Consider the differences between sectors and their ability to foresee capacity requirements down the road.”


It makes sense for a company such as Loblaw to put out a schedule 10 days in advance — it’s a highly sophisticated company with a highly sophisticated HR department, said McGuinty, and it’s also relatively easy for the company to foresee future capacity requirements.


“It’s a totally different situation for a mid-sized manufacturer who often has to adjust production in order to meet demand. So sometimes those changes in demand require an increase in staffing that has to happen over the course of a few days. So it’s not realistic to expect that kind of company to schedule 10 days or two weeks in advance because they just can’t foresee their staffing requirement,” he said. 


There’s also the distinction that on-call scheduling can mean different things, said DiCaro. 


“There’s a part of it that is a natural part of being a part-time worker in the retail sector... If people were to call in sick and there’s a need to call people in to fill in gaps, or there’s higher traffic levels than usual in stores, the process of calling people in to work is something that retail workers have come to expect,” he said. 


“When I talk about this, there’s some nuance to it because on (that) aspect of on-call, I think that there’s ways that that can continue to happen, as long as the process of calling people in is fair.”


It’s not about a blanket ban on on-call shifts, it’s just about implementing fair and balanced standards around it, he said. 

“There’s this tendency to want this full stop against on-call, but to me it doesn’t make a lot of sense because it’s not capturing all the different nuance.”


Proposed solutions

One important change Unifor has identified is the push for negotiations around minimum hours of work, said DiCaro. 


“We (are) calling on the (Ontario) provincial government to think about, when they’re doing their employment standards review, actually instituting, legislating minimum hours of work guarantees for part-time workers — some measure of stability for part-timers,” he said. 


“Another aspect of on-call is having proper processes in place about how call-ins will work and when they’ll be used… in certain occupations, if you’re on-call, you’re actually compensated for that time that you’re on-call. It’s not unheard of.”


Another thing they’d like to see legislated is stronger language around what happens if a shift is cancelled, he said. 


“There’s got to be some strong compensation language around that as well. So if 15 minutes before my shift, I get a phone call that says, ‘Oh, we don’t need you today,’ that shouldn’t be allowed. And if it does happen, those workers need to be compensated,” said DiCaro. 


Legislating fair scheduling practices is essential because, otherwise, many if not most retail workers will have no protection, said Langille. 


“Does it need to be in employment standards legislation? Well, absolutely, because most of the workplaces where this is a problem aren’t going to be unionized. There’s a very low rate of unionization in the retail and service industries,” he said. 


“We need to embed fair scheduling practices and limits on on-call employment to something reasonable through employment standards legislation. I think that’s something that needs to be done sooner rather than later.” 


And it shouldn’t matter where you’re working or what sector you’re in, said Coulter. 


“Some scheduling notice and predictability is such a basic right. Two weeks’ notice has been proposed by some, and that seems to be a very reasonable minimum. Employment standards could also require that current employees be offered more hours before any new hires are made,” she said. 


In essence, we need to stop the push to compete with the lowest common denominator, said DiCaro. 


“That can only take a sector so far and I hope the future will be competition based on quality customer service — and if you want quality customer service, then you’re going to have to treat (employees) better.”

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