Can Your Employer Force You To Come In Early Unpaid?

Can your employer force you to come in early unpaid?

No, in Ontario, employers cannot force their employees to come into work early for unpaid meetings or the like. Likewise, employers cannot ask their employees to show up early to prepare or get something ready unless they are being paid for all the time they are there.

The Ontario Employment Standards Act requires that all “work” is paid. To that effect, section 1.1. of Regulation of 285/01 of the Employment Standards Act defines “work” as when the employee is not performing work but is required to remain at the place of employment, even if he or she is on break or waiting around or receiving training. Thus, essentially, anytime an employee is required to be “at work”, he or she must be paid (unless they are eating on an eating break).

The Employment Standards Act is strict in its requirement that all the time spent at the workplace must be paid. The only time an employee does not need to be paid when he or she is at work is when they are on an eating break. To be clear, this is the only exception that allows an employer not to pay an employee for time spent at work (unless it is an extremely rare workplace like a camp for example that requires employees to sleep there). There are simply no unpaid work exceptions for training, waiting around, wasting time, etc.

For example, it is illegal not to pay an employee to come in early for these kinds of activities that unscrupulous employers sometimes ask their staff to perform unpaid:

  • Shift change
  • Prepare for a shift
  • Training of any kind
  • Setting up equipment/station
  • Change clothes
  • Debrief
  • Screening or tests
  • Setting up a computer or system
  • Punching in

If an employer asks employees to come in 15 minutes or 30 minutes early for these above-noted types of things, then the employer must pay the employees who show up such pay for the extra 15 or 30 minutes that they are there.

Summary: If an employer is asking an employee to come in early without pay, it is illegal. Employees should be paid for all work. Employees who believe they are being short-changed should ask their manager to pay them for coming in early or, failing that, call the Ministry of Labour Employment Standards Branch to complain and ask them to issue an order to pay for all previous unpaid “early” work.

Employees should be aware that just because they have the absolute right to pay when they come in early, they generally do not have a choice to come in early or not. Unless their employment contract states otherwise, an employer may change an employee’s schedule and demand they show up early occasionally.

Are Employees Supposed To Be Paid To Commute?

No, in most cases, employers do not have to pay for commuting. However, the Employment Standards Act has a few rare exceptions for when an employer does have to pay for commuting:

  • If the employee takes a work vehicle home in the evening for the convenience of the employer (for example, the employer has no space for the truck), paid work begins when the employee leaves home in the morning and ends when he or she arrives home at night.
  • If the employee is required to transport other staff or supplies to or from the workplace or work site, time so spent must be counted as paid work time. For instance, if an emoloyee’s job is to pick up other workers on the way to work at a new bridge construction, she must be paid to do so.
  • If the employee has a usual workplace but is required to travel to another location to perform work, the time travelling to and from that other location is counted as work time. For example, if a junior lawyer usualy works in dowtown Toronto, and has to drive an hour away to Richmond Hill for an Adjounment for a senior lawyer, he should be paid for it (trust me, I know from experience as a junior lawyer many years ago…)

This means that for all other commutes like the normal ones such as taking the subway to work or driving to work (at the normal location), it is unpaid.

Dutton Employment Law represents employees and employers in Ontario. Call us for a free phone consultation.