What is the Three Hour Rule in Ontario?

Think about preparing for a shift at work. The process of getting ready and going to work may involve putting on a uniform, driving or taking public transportation, styling your hair to look presentable, and any number of other tasks. If you were to get prepared to work, show up at work, and get sent right home, it may feel like you are entitled to compensation despite working for a brief time, or even not working at all.

According to Ontario’s Employment Standards Act, 2000 (“ESA”), a person in the situation above may actually be entitled to compensation under the three hour rule.

The Three Hour Rule in the ESA

In the ESA, the three hour rule states that if an employee who usually works more than three hours a day has to show up at work but ends up working less than three hours, even though they can work longer, their employer has to pay them three hours worth of wages.

The three hours worth of wages can be determined using one of two calculations, and the employee is entitled to whichever is a greater amount. The two options are:

• The sum of the amount earned during the time that the employee was at work plus the wages that the employee would normally receive as their regular rate.

• Pay equal to three hours of the regular rate of the employee.

An employee may receive a greater entitlement under the first calculation than in under the second due to receiving a wage rate during their time at work that is higher than their regular rate.

To illustrate the difference between the two calculations, consider an employee who has already worked 44 hours within a single week. This employee is at the threshold of receiving overtime pay, as overtime pay entitlement usually begins after working more than 44 hours in one week. If this employee gets called into work, shows up, and gets sent home after two hours of work, they are entitled to three hours of pay under the three hour rule.

If the first calculation is used, the employee receives two hours of pay at their overtime rate and one hour of pay at their regular rate. This is because the employee is entitled to the sum of the amount that they actually earned by being at work, plus the amount that they would receive as their regular rate for the remainder of the three hours. As overtime pay is at least time and a half, the employee will receive a minimum of four hours of pay at their regular rate.

If the second calculation is used, the employee will just receive three hours of pay at their regular rate. As the employee is entitled to the greater of the two, the first calculation would be used to determine the amount of pay that the employee is owed.

What Are Some Exceptions to the Three Hour Rule?

There are certain situations where the three hour rule does not apply.  

The three hour rule does not apply if:

• The employee regularly works three or less hours a day
• The employee cannot work longer than three hours, or the reason that the employee works less than three hours is by choice
• The employee shows up at work without being asked to show up by their employer

There are several jobs that the three hour rule does not apply to:

• A student in a recreational program that is operated by a charity, unless they are a wilderness guide
• A student who is instructing children, unless they are a wilderness guide
• A student at a children’s camp, unless they are a wilderness guide
• A superintendent, janitor, or caretaker of a residential building who also lives in the building that they work in

The three hour rule also does not apply if the employer cannot give the employee work for reasons outside of their control. This can include weather events such as lighting or a storm that prevent the employee from being able to work, or unforeseen circumstances such as a fire or power failure at the establishment.