Section 21.2 – Three hour rule
Three hour rule – s. 21.2(1)
21.2 (1) If an employee who regularly works more than three hours a day is required to present himself or herself for work but works less than three hours, despite being available to work longer, the employer shall pay the employee wages for three hours, equal to the greater of the following:
The sum of,
the amount the employee earned for the time worked, and
wages equal to the employee’s regular rate for the remainder of the time.
Wages equal to the employee’s regular rate for three hours of work.
Section 21.2 was added to the ESA effective January 1, 2019.
Prior to January 1, 2019, a different version of the three hour rule was set out in s. 5(7) of O. Reg. 285/01. That provision was revoked effective January 1, 2019 – for information about that rule, see the discussion under s. 5(7) of O. Reg. 285/01, which is being retained for transitional purposes.
Subsection 21.2(1) provides that, under certain circumstances, employees must be paid at least three hours' pay at the employee’s regular rate of pay, even though the employee has worked less than three hours. Note that employees in the women's coat and suit industry and the women's dress and sportswear industry have special rules that apply instead of s. 21.2 - see O Reg 291/01, s. 3.
Circumstances in which s. 21.2(1) applies:
In order for section 21.2 (1) to apply:
The employee regularly works more than three hours per day
The three hour rule has no application if the employee regularly works three hours a day or regularly works less than three hours a day
The employee is required to present himself or herself for work
This section will not apply where the employee has reported to work when directed not to do so by the employer, even on a day that is normally a workday
The employee works less than three hours, despite being available to work longer
The wording “despite being available to work longer” clarifies that in order for s. 21.2 to apply, the employee must be available to work for more than three hours. Therefore, if the employee presents him or herself for work and leaves early, for example due to illness or due to pre-arranged time-off, the employee cannot rely on this provision to seek wages for three hours of work.
It is immaterial whether the hours are worked on a regular work day or on a day on which the employee does not usually work, provided that the employee was required to present him or herself for work that day. In other words, the three hour rule may also apply when the employee is called in to work on a day that is not a regular workday, if the employee works less than three hours that day.
If the employee's schedule includes regularly working more than three hours a day and regularly working three hours a day or less, the application of the three hour rule will depend on whether the day is one where the employee would regularly work more than three hours or one where the employee would regularly work three hours or less.
As an example, assume an employer occasionally schedules staff to attend Saturday morning meetings. Assuming that the employees regularly work 8 hours a day, Monday through Friday, the three hour rule would apply to these occasional Saturday staff meetings. However, if the employer was found to regularly schedule the employees for one-hour Saturday morning staff meetings, it would be the Program's position that the three hour rule would not apply to those Saturday shifts/meetings. That is because it is the Program's view that s. 21.2(1) was not intended to prohibit an employer from having a regular shift schedule that incorporates shifts of less than three hours.
As another example, an employer could establish a shift schedule that has the employee working four-hour shifts on Mondays, Wednesdays and Fridays and two-hour shifts on Tuesdays and Thursdays. The regularly scheduled Tuesday and Thursday shifts would not trigger the application of the three hour rule because the employee regularly works less than three hours on those days. Note though that if the employee was not provided with at least three hours of work on a Monday, Wednesday or Friday, the rule would apply.
Calculating entitlement
Where the provision applies, an employee will be entitled to be paid at least three hours at his/her regular rate of pay (though the amount owing could be more). The employer must pay the employee wages for three hours equal to the greater of the following:
The sum of,
the amount the employee earned for the time worked, and
wages equal to the employee’s regular rate for the remainder of the time.
Wages equal to the employee’s regular rate for three hours of work.
Paragraph 1
Under subparagraph 1(i) of s. 21.2(1) the employee is entitled to be paid for the time worked. This amount includes all wages the employee was entitled to receive for the time worked — this might be wages at the employee’s regular rate or, in some circumstances, might be wages earned at a different rate, including overtime or premium pay.
Once the calculation is complete for the wages the employee earned for the time worked under subparagraph (i), the employee would then be entitled to be paid his or her regular rate for the remaining time per subparagraph (ii). For example if an employee works for one hour and is entitled to be paid one and a half times his/her regular rate of pay for that hour (because, for example, it was a public holiday), he/she is also entitled to receive an additional 2 hours of pay at his/her regular rate pursuant to subpararaph (ii) of paragraph 1.
Paragraph 2
The employee’s wages for three hours of work at his or her regular rate would be calculated.
Comparison
The results from the calculation under paragraphs 1 and 2 would be compared. The calculation that results in the greatest amount of wages owing is the employee’s entitlement.
Example 1:
Employee:
Regularly works more than three hours per day and is required to present herself for work;
Regular rate is $28.00/hour;
Works for one hour and is then directed by the employer to leave;
Is paid her regular rate of $28.00 for one hour’s work.
Entitlement is the greater of:
The sum of, the amount the employee earned for the time worked, and wages equal to the employee’s regular rate for the remainder of the time.
Wages equal to the employee’s regular rate for three hours of work.
In this example, the employee is entitled to $84.00 per s. 21.2(1).
Example 2:
Apply the same facts as in the first example, but assume the employee earned overtime pay (at 1.5x her regular rate) for the one hour she worked.
Entitlement is the greater of:
The sum of, the amount the employee earned for the time worked, and wages equal to the employee’s regular rate for the remainder of the time.
Wages equal to the employee’s regular rate for three hours of work.
In this example, the employee is entitled to $98.00 per s. 21.2(1).
Exception – s. 21.2(2)
21.2 (2) Subsection (1) does not apply if the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer's control that result in the stopping of work.
Subsection 21.2(2) establishes that the three hour rule in s. 21.2(1) does not apply when certain types of circumstances that are beyond the control of the employer prevent it from providing work to an employee who reports for work.
For this provision to apply, the circumstances described in the section must be responsible for the complete stoppage of an employee's work. If the circumstances only reduce the demand for the employee's services, this provision will not apply and the three hour rule will apply. For example, a severe electrical storm could result in an employer being unable to provide a construction employee with any work and s. 21.2(2) would therefore apply. If the same storm only reduced the volume of work for an employee who works in a car wash, then s. 21.2(2) would not apply.
