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Canadian tea retailer’s on-call practices questioned in N.Y.

|Written By Jennifer Brown

The life of part-time employees may be getting even more precarious based on “on-call” practices Canadian retailer DavidsTea is using in certain U.S. states.

barista, on-call employment
Employment lawyers in Canada say nothing prohibits on-call practices here; it is a a sign of these precarious employment times. (Photo: Shutterstock)
On April 12, New York state Attorney General Eric Schneiderman wrote to the heads of 15 major retailers including Sylvain Toutant, president and CEO of Montreal-based DavidsTea, about using “on-call” shifts to control labour costs.

Schneiderman and officials from eight other U.S. jurisdictions notified the retailers — including Coach, Forever 21, and Payless ShoeSource — that he wants more information about their use of a scheduling practice that asks employees to call in before a shift to find out if they are needed to work.

If a worker isn’t required to work, they aren’t paid for the day, even though the person was required to be available for work that day and forgo other opportunities.

Many provinces in Canada have legislation that mandates a minimum period of pay at minimum wage when an employee shows up and gets sent home early (in Ontario, for example, it is three hours). In New York, the requirement is to pay for a minimum of four hours.

The approach taken by some of the U.S. retailers is more like having a roster of casual workers where the worker is not actually required to report in to the premises before his or her shift is cancelled.

Schneiderman said on-call shifts are not fair to workers because unpredictable shifts make it hard for employees to arrange childcare and otherwise conduct their lives. Employers who received similar communication from the state last year ended the use of on-call shifts.

“On-call shifts are unfair to workers who must keep the day free, arrange for childcare, and give up the chance to get another job or attend a class — often all for nothing,” said Schneiderman in a press release. ”On-call shifts are not a business necessity, as we see from the many retailers that no longer use this unjust method of scheduling work hours.”

Employment lawyers in Canada say there is nothing prohibiting that kind of practice here — it is merely a sign of the times in the realm of precarious employment.

“The potential conflict would arise if an employee was terminated for not being available when called,” says Nasha Nijhawan, of Nijhawan McMillan Barristers in Halifax.

“Unfortunately, in the context of a minimum wage/part-time employment relationship, all the employer would have to do in that case is pay out any applicable statutory minimum notice period to escape liability,” says Nijhawan.

It would still probably be “worth it” to the employer from a cost of doing business perspective.

“This is a reflection of the power dynamic of minimum-wage employers in a depressed job market — they don’t need to offer stability where their employees don’t have options for other jobs,” she says.

“On-demand” scheduling may be a sign of a difficult labour market, but it is not unlawful in Ontario, says Danny Kastner, of Kastner Law in Toronto.

Kastner says it is a feature of the new precarious employment landscape.

In Ontario, the ongoing provincial Changing Workplaces Review is considering how the Labour Relations Act, 1995 and Employment Standards Act, 2000 could be amended to best protect workers while supporting businesses in a changing economy. The goal is to tailor employment law to more specifically address the emerging issues that arise when non-traditional models aren’t used.

“If it were going on here, it’s the kind of issue the province would be looking at because it highlights how traditional labour and employment laws are out of date when it comes to new models of employment,” says Kastner.

Kastner points out that those who work for temp agencies get what is effectively “on-call work,” but he adds it can be “hugely problematic” in terms of the havoc it can create in the lives of employees.

“Some employees might prefer this approach and prefer it to the 9 to 5, but there is something inherently troubling about the kind of just-in-time supply chain logic that Wal-Mart uses being applied to workers,” says Kastner.

Last year, the New York state attorney general’s office sent letters to 14 major retailers seeking information on on-call shifts. Several recipients indicated they were not using such shifts, while others agreed to stop the practice.


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