Some background on the Nova Scotia laws/topics I want to hit today.
*Overtime*
Under the Code, where an employee is required to work more than 48-hours in
a week, that employee is entitled to overtime for every hour in excess of
48. The overtime rate is 1.5x the employee’s regular hourly wage. The Code,
as mentioned, would not apply to a domestic services live-in worker who
works less than 24-hours per week, however.
To reduce overtime obligations, the company could come to an overtime
averaging agreement with its employees and submit this to the Labour
Standards Division (the “Division”) for approval. If approved, for example,
this agreement might average the hours worked over the entire month—thereby
limiting overtime entitlements. For this arrangement to be approved, the
sum of the compensation provided to employees would need to be deemed a
greater benefit to the employee, however.
*Breaks*
The Company will need to be mindful that caregivers are receiving the
appropriate breaks under the Code when working a 24-hour shift. There is no
daily maximum hours of work in NS, but an employee is entitled to a
30-minute break every 5 hours of work. After the first such period,
subsequent breaks can be split up into 15-minute increments.
*Periods of Rest*
Depending on scheduling, the Company should be aware employees are entitled
to 24-hours off per 7 day period.
*Waiting Time*
Waiting time may end up being a significant financial liability for the
Company. There is significant risk that if the caregiver is required to
stay at the client’s home during breaks for meals, sleep, etc., that this
time will all be deemed waiting time and will be required to be paid at
least at the minimum wage. There is some risk this could also be considered
time worked and count toward the overtime threshold, but in my previous
conversations with the Director of the Division, I understand that this is
not the Division’s interpretation (but, I note, there is no policy or
actual decision providing guidance on this—it’s an open point). If the
employee is required to stay on the premises, then the Company is going to
have to pay for all 24-hours. This might be more than anticipated.
A creative solution of allowing the employees to leave but to always have
an emergency alert system in place so they can return might be an option.
There are two decisions of the Labour Standards Tribunal which provide
guidance on waiting-time for caregivers:
- In *Mary R. Baker v Elmwood Manor Limited*, 2007 CanLII 90576, a
live-in caregiver was found to be entitled to pay for her sleeping time and
waiting time where it was required that she remain on the premises and
available to render services during these times. The Director of the
Division referred me to this decision last time we spoke as likely being
determinative of the issue.
- The second relevant decision, *Barbara Moore v Ivy Power*, 2008
CanLII 92078, also provides some guidance. There, a live-in caregiver who
worked only weekends, was found to be a domestic service employee who
worked less than 24 hours per weekend and so was exempt from the Code and
its regulations and Minimum Wage Order. This finding was made despite the
fact that the employee stayed at the client’s home all weekend from Friday
night to Sunday night – forty eight hours. It was found the employee was
only required to work from about 9 AM to the early evening. Even though the
employee slept over at the client’s home and was around throughout the
other parts of the day, it was determined that the employee was free to
leave and was *not required to be on the premises*.
*Call-In Pay*
If employees are not required to remain on the premises during their
off-time or sleeping time in a given day, but are called back to work based
on the needs of the client, that employee is likely entitled then to Call
In pay. The Division has previously agreed with this interpretation.. Under
the Minimum Wage Order, an employee who is called in is required to be paid
at least three hours at the minimum wage regardless if the employee works
fewer than three hours. So, an employee called back to provide service to a
client while on off-time or sleeping time is owed three hours’ at the
minimum wage even if the service required takes only a few minutes. These
off-hours calls should be documented by employees and submitted for
compensation. Per our comments in the client agreement, you may wish to
pass this cost on to the end client.
It is the Division’s interpretation that only time worked for a call-in
counts towards the calculation of overtime.
--
Steve Koyanagi
Assistant General Counsel
* Please note my email has changed: *
skoyanagi@thekey.com <https://brand.thekey.com/esg/skoyanagi@thekey.com>
650-722-6476
TheKey.com <https://www.thekey.com/>
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