Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com with Leah Schatz Ask an Expert MLT AIKINS LLP, SASKATOON Canadian HR Reporter, a Thomson Reuters business 2018 2 |March 28, 2018 Paying employees on standby duty Question: Can employers require or request unpaid standby duty where employees are only paid if they are called in? Can standby duty be counted towards the overtime threshold? Answer: e answer to this question will largely depend on the applicable legislation and the specifi c nature of the standby duty. Generally, an employee will not be entitled to paid standby duty, unless the standby duty would be considered "work." Again, this will depend on the case. In Ontario, work is considered to be per- formed when the employee is actually work- ing. us, an employee who is not at the workplace, but is on call is not considered to be working unless the on-call employee is actually called into work. Where the em- ployee is called into work and the time that they are performing work pushes them past the defi ned hours for the work week — 44 hours in Ontario, for example — then that employee will be entitled to overtime. How- ever, the time while the employee is at home on standby would not be counted. In Manitoba, employees are only paid for hours that they have worked and being "on-call" is not considered time worked. However, once the employee is called into work, there are specifi c on-call wage re- quirements that will apply. For example, if an employer has not told the employee how long he is being called into work for, the on- call employee must be paid for at least three hours when he reports to work. e legisla- tion provides an option to avoid having to pay the three-hour minimum for employ- ers who schedule their on-call times. How- ever, these schedules need to be accurate. us, if an employee ends up regularly working more than the time scheduled for, that employer will be required to pay the employee three hours' wages. In Saskatchewan, employees who are "at the disposal" of the employer are entitled to be paid wages. us, the question is whether while on standby, the employee would be considered at the employer's disposal. e answer will depend on the specifi c case. If the employee spends his on-call time at the workplace and remains under the employ- er's control throughout that time, it is likely that the employee will be at the employer's disposal. For example, it has been held that an employee on standby was at the employ- er's disposal during shifts where she slept at a care home, but remained on call to deal with residents' needs. In Alberta, an employer is not required to pay an employee who is on standby waiting to be called to work unless he is spending that time at the workplace. However, there are situations where the employee would be considered working, such as when the employee is required to wear a uniform during standby duty, or is required to mon- itor radio calls. In many cases the employment agreement is governed by an employment contract or a collective agreement. As such, it is impor- tant to consider whether the employment agreement contemplates rights above and beyond those available under statute. is question was recently considered by the Supreme Court of Canada in the decision, Association des juristes de justice c. Canada (Procureur général). In that case, the question was whether a unionized employer could unilaterally in- troduce a policy requiring that employees provide unpaid standby duty. ere, lawyers working for the Department of Justice were informed that they would no longer be paid for time spent on standby duty. is reduced the amount of lawyers who volunteered to work standby duty. To deal with this, the em- ployer issued a directive making after-hour standby shifts mandatory. e matter was grieved with the arbitrator concluding that the policy was not a reasonable or fair exer- cise of management's rights. e Supreme Court of Canada agreed with the arbitrator. Although the collective agreement was si- lent on the question, the employer had uni- laterally imposed a policy that took away a long-standing practice of paying its employ- ees for standby duty. As such, the employer's enforcement of the policy constituted a vio- lation of the employer's duty to act reason- ably, fairly, and in good faith under the col- lective agreement. Even if an employer is not governed by a collective agreement, there may nonetheless be an obligation to pay for standby duty. As in the above case, where there is a longstand- ing practice of providing standby pay and the employer unilaterally introduces a policy that does away with that past practice, then an employee may have grounds to assert that the employer similarly breached its duty of good faith under the employment contract. For more information see: • Association des juristes de justice c. Cana- da (Procureur général), 2017 CarswellNat 5990 (S.C.C.). Question: If a manager sees employees participating in misconduct, can she take pictures or video with her smartphone without the employees' consent and use it as evidence of misconduct? Answer: Videotaping or photographing employees in order to gather evidence of misconduct raises both employment law and privacy law issues. It is fi rst impor- tant to bear in mind that employees in the workplace have a reasonable expectation of privacy. In general, Canadian employers can only collect, use and disclose personal information for purposes that a reasonable person would consider appropriate under the circumstances. Capturing evidence on a smartphone in this spontaneous manner can raise some real issues for the employer in both the employment law and privacy law realms. e manager's actions in this case would likely raise serious concerns that employ- ees would be vulnerable to arbitrary intru- sions on their reasonable expectation of privacy. A four-part test has been articu- lated by Canadian courts and applied by Privacy Commissioners in many Canadian jurisdictions in determining whether this type of video or photographic evidence is reasonable. e key considerations include whether the use of surveillance is demon- strably necessary to meet a specifi c need, whether it is likely to be eff ective in meet- ing that need, whether the loss of privacy to the people being fi lmed is proportional to the benefi t gained, and whether there a less privacy-invasive way of achieving the same end. Generally, based on this analysis, sur- veillance is only found to be acceptable where an employer can prove that a serious, legitimate business reason necessitates surveillance (such as safety and security, theft, vandalism or drug use/traffi cking), and that surveillance was appropriately implemented. Gathering evidence on a manager's smart- phone would be considered an intrusive en- croachment on the employee's expectation of privacy. In fact, Privacy Commissioners in Canada generally recommend that orga- nizations consider all less privacy-invasive PATH on page 11 »

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