In this conference Q&A, we address the upcoming three-hour rule as it relates to a cancelled shift within 48 hours of the start of the shift.

In partnership with Stringer LLP, First Reference Inc. recently hosted the 19th Annual Employment Law Conference on June 12, 2018, where we discussed the latest legal developments including issues surrounding practical strategies for compliance with Bill 148.

We received a large number of questions from conference attendees during the Q&A session. Though we could not answer them all during the conference, the First Reference Blog will be updated weekly until further notice, to provide further clarity on this year’s hot topics based on the questions we received.

Q:

If the employer cancels a scheduled shift within 48 hours before start, but the employee doesn’t receive notice of cancellation before the shift starts (i.e., didn’t check email), is the employer responsible for paying the three hours?

A:

Effective January 1, 2019, the Employment Standards Act, 2000 (ESA) will see significant changes to scheduling provisions. Currently, the Ontario Employment Standards Act does not require a notice of shift change nor does it put restrictions on the timing of an employee’s shift. This will change effective January 1, 2019. Amendments to the ESA will reduce the ability of an employer to change the working hours of an employee on short notice, among other things.

Effective January 1, 2019, employers will be required to pay employees for three working hours if their shift is cancelled within 48 hours of the scheduled time. Moreover, if the employer cancels the employee’s scheduled day or work or on-call period with less than 48 hours’ notice prior to the start time, the employer must pay the employee wages equal to 3 hours of pay at the employee’s regular rate.

Employers will not be required to pay for a cancelled shift if they were unable to provide work because of:

• Fire, lightning, power failure, storms or similar causes beyond their control; or
• Employee’s work is weather-dependent and the employer is unable to provide work for weather-related reasons.
• Such other reasons as may be prescribed by the Ministry of Labour.

For example (provided by the Ontario Non-profit Network), Ray provides outreach to clients who are homeless which requires him to be outside on most days. He is usually scheduled for five-hour shifts, three days per week. During one of his scheduled shifts, he only ends up working two hours rather than his usual five hours as his employer cancelled the balance of his shift due to a severe winter storm. Ray’s employer only pays him for the two hours he worked that day. Is Ray’s employer in violation of the scheduling provisions? No, this is not a violation.

But what happens if the worker did not receive the notification of the cancelled shift, or if the worker failed to check for the notification of cancelled shift?

There is a notable difference between failing to receive notification of cancelled shift and failing to check if there is a notification of a cancelled shift. Unfortunately the law does not provide any guidance on such matters.

That said, employers should start modifying their hours of work or attendance policy that includes how schedules will be set or cancelled as well as the method used to communicate the changes in schedules and cancellation of shifts.

The employer should discuss with employees which method of communication is most reliable and best suited for both the employer and the worker, depending on what allows the worker to easily access and promptly respond to cancelled shift notifications.

Examples of communication methods include email, intranet, text message or phone call, among others.

In the policy, workers should be made responsible to check the agreed-upon method of communication of cancelled shifts.

Establishing a process for the practical aspects of shift cancellation notifications in the policy would go a long way to protect employers from paying a worker who claims that he or she did not know about the cancelled shift because he or she failed to check the method of communication for notifications.

To stay up-to-date about progress of the law, guidance and best practices on Bill 148’s impact on scheduling, on-call work, changes to scheduled shifts and shift cancellations, consult The Human Resources Advisor, Ontario edition. If you are not already a subscriber, try a 30-day free trial here.

Please Note: This article is prepared for information purposes only; it is not legal advice. Consult a lawyer before acting on it or to obtain legal advice or a legal opinion.