Some on-call employees entitled to pay, but rules vary

Employers who permit employees to do whatever they wish with their time while on call do not need to compensate them for that time.

However, employees who are on call but are required to remain on workplace property must be appropriately compensated for their time.

“If they are required to wait at work, then (they need to be paid) as if they are working,” says Karen Seargent, a partner at Fasken Martineau in Toronto.

In British Columbia, employment standards contains a definition of work that includes a provision indicating an employee is deemed to be at work while on call at a location designated by the employer unless the designated location is the employee’s residence.

“What that means is if the employee is asked to be on call and they’re required to wait in their residence to await a call to work, they are not considered to be working,” says Donovan Plomp, a lawyer with McCarthy Tétrault in Vancouver. “If they’re on call, it must be at a specific location other than their residence.”

While employers may not be required to compensate individuals for being on call while remaining at home, employers may want to implement this type of compensation to attract top talent, says Juliet Francis, a payroll consultant in Toronto.

“(Being on call) is very specific to certain types of jobs and in order to be competitive in the market, (employers might) put some sort of on call premium,” she says. “Just like if you want people to work an overnight shift, you tend to implement some sort of compensation so you will get the better quality people who will take that late night shift.”

Francis is quick to point out that on-call pay is different from call-in pay.

“Call-in pay is the minimum number of hours that an employer must pay you for, even if you get to a site and there’s not enough work so they send you home,” she says. “On-call means they need to be available in case there’s an emergency or something comes up.”

But if an employee is called in to work while on call, they are entitled to the minimum call-in pay, Sergeant says.

“Every province has a rule around minimum payments and most minimum payments are at minimum wage,” she says, adding Alberta requires employees be paid a minimum of three hours at minimum wage.

If an employee is called into work and only works one hour, but that employee’s compensation for one hour of work is greater than three hours at minimum wage, then the employer is only required to compensate for that one hour of work.

“Ontario would be three hours at minimum wage or the employee’s regular wage for the actual time worked —whatever is greater,” she says. (See the sidebar below for the specific requirements in each province.)

Employees who frequently work overtime may reach the overtime threshold while on call, in which case compensation must be calculated according to overtime rates.

“The overtime would trump everything else,” Sergeant says. “In Ontario, if they were called back in and three hours was going to put them over and above the 44-hour threshold, then, yes, it would be at the overtime rate.”

Employers must pay attention to legislation in regions where there is a daily overtime threshold.

“In British Columbia, any work more than eight hours a day or 40 hours a week triggers overtime,” says Plomp. “So if the on call work occurred in the same day after an eight hour shift then overtime pay would be triggered.”

The only time someone may not be entitled to on call compensation is if they are a live-in caregiver, says Sergeant.

“When that individual is sleeping, for example, they would not be entitled to pay,” she says.

Employers that don’t compensate their employees for being on call may want to rethink their decision, says Francis.