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THE QUESTION
I started a part-time, remote job. I earn a set amount per week based on four hours of work per day. Because of the nature of the job, I need to wait for my manager to assign my daily tasks. She often drip-feeds the tasks throughout the day, which means I need to be at my desk and ready to hop on the task once it’s assigned. This isn’t what I expected when I took on this job. I wanted more flexibility for taking on other gigs (like dog walking) throughout the day and personal errands in between. The work itself only takes four hours, but should I be compensated for the time I’m stuck at my desk, waiting for my tasks to be assigned?
THE FIRST ANSWER
Christopher Gibson, partner, Ryan Edmonds Workplace Counsel, Toronto
There are different regulations in each province, but under Ontario’s Employment Standards Act (ESA), you are deemed to be “working” if you are required to remain at the place of your employment waiting for work.
However, you are not considered to be working while on-call outside the workplace. While the law has not fully caught up with the realities of remote work, the ESA does not distinguish between a traditional office and a home office. If you are required to sit at your desk and be available to work at a moment’s notice, that time would likely be considered working time. The more flexibility you have while you wait, and the longer you have to respond, the less likely you are to be deemed to be working.
Whether your employer must pay you for time you are required to be at your desk but not actively working is a separate question that depends primarily on the terms of your employment contract, provided that it complies with the minimum wage. However, your employer can pay you less than the minimum wage (even nothing) for some work hours so long as your average hourly wage in each pay period complies with the minimum wage. The ESA would only require your employer to pay you for deemed on-call work if your average wage for the pay period would fall below the minimum wage.
If you are unsure whether your employer is honouring your employment agreement or whether your employment agreement complies with the ESA, it may be worth consulting an employment lawyer.
THE SECOND ANSWER
Katie Ahn, associate lawyer, Carbert Waite LLP, Calgary
Employment laws vary between provinces. In Alberta, employers are not required to pay employees who are on call or on standby waiting to be called to work, unless the employee is waiting at the place of employment. Being on call or on standby while at home is not considered “work”. There are exceptions to the rule where standby time would be considered work, such as when the employee is required to wear a uniform and/or monitor radio calls.
Whether standby time counts as work depends on the level of control your employer has over your availability. If you must remain at your desk, monitor messages and respond promptly throughout the day in a way that limits your ability to use the time for personal purposes, the time may be considered working time and should be paid.
Even when working remotely from home, if your employer requires you to remain available throughout the day with tasks drip-fed in a way that prevents you from using your time freely, you may be considered “actively working” and entitled to compensation.
You may wish to raise the issue with your employer and clarify the expectations. One option is to confirm the exact hours that you are expected to be monitoring your computer for assignments and completing tasks. Another option is to agree on a set timeline for completing tasks after they are assigned (for example, you have eight hours to complete a task from the time it is given), which could give you more flexibility. If the situation continues to affect your ability to manage your time or income, you may want to consider seeking legal advice to better understand your rights.
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