I could draft the most perfect on-call agreement for a client, but my advice accompanying that agreement would include so many of “but’s” and “if’s” that I’d sooner recommend another kind of temporary employment agreement that suits the client’s needs.
Using on-call agreements is risky for employers, especially because the businesses that tend to use on-call employees are often the fast-moving businesses. They do not have the time or personnel to keep meticulous track of the advice that I would provide regarding the use of such an agreement and how the agreement is implemented in practice. As Sint Maarten has a seasonal economy, I can imagine a lot of businesses use on-call agreements.
An on-call agreement is an agreement in which parties agree that the employer will invite the employee to work when required and the employee has declared to be available to do the work when required. The idea behind the on-call agreement is that parties agree that no payment is due when the employee does not work. There are two sorts of on-call agreements. I will illustrate the more common one from the employer’s perspective. If you are an employer, you will understand why I do not like on-call agreements.
You are a restaurant/bar owner in Simpson Bay. You’re expecting a good season, during which you will occasionally need an extra server for busy nights. You find an experienced lady that is available to work on-call. You use the perfect on-call agreement that you had made up, and give her an on-call agreement for one year, as you only have to pay her for the work she actually performs. She starts working in November on happy-hour nights; you are satisfied with her performance. December comes and it is crazy busy. Business is good. You schedule her to work every week of December for an average of 25 hours. Come January, business slows down a little but is still good enough for her to work around 20 hours a week.
On January 20, one of your permanent servers has an accident and breaks his leg. The expectation is that the leg will take six weeks to heal. After five weeks, you hear from the employee that his leg is not healing well and that it needs to be operated on, and after that he needs to revalidate and it is not yet known when he will return, but usually this kind of operation will take two months to heal.
During this time, you make up a schedule for your on-call employee to fill in for your permanent employee. Your on-call employee is now working between 30 and 35 hours a week. Ultimately, the permanent employee takes three months to return to work. When the permanent employee returns in May, it is low season. You do not have work available for the on-call employee so you stop scheduling her to work. After all, you had a written agreement with the employee that she is only paid when she works.
In June, you receive a letter from a lawyer claiming that you have to pay the on-call employee salary for June for an average of 33 hours a week and that the employee is available to resume work.
One basic rule in employment law is that it is not only important to look at what parties agreed, but how parties have given substance to the employment relationship in practice.
Article 7A: 1613cb of the Civil Code stipulates that if an employment agreement has lasted at least three months, the stipulated work in any month is presumed to be equal to the average amount of work per month in the three preceding months. It is up to the employer to prove that the employee did not have an agreement for 33 hours per week.
Article 7a:1614d of the Civil code stipulates that the employee does not lose his entitlement to receive wages if he was willing to perform the stipulated work, but the employer has not made use of this willingness.
In my example, it is most likely that the employer will end up having to pay the employee, even if he does not have work available for her. If the employer used temporary agreements that were more suitable for the situations – an expected busy season, and an unfit employee – instead of an on-call agreement, this would not have been the case.
Although the example is completely made up, I think it is rather realistic. Some on-call employees reading this article may also be better informed about their legal rights.