Key Points to Keep in Mind
- Mandatory pay equality: An employer cannot grant a higher hourly rate to an employee simply because they work more hours.
- Caution with bonuses: Any bonus designed to encourage employee availability or flexibility must be structured to respect equal pay.
- Prorated bonus = wage increase: If the bonus is calculated according to hours worked, it is considered an increase in the regular hourly rate.
- Valid reasons for a disparity: Only employee- or job-related factors, such as experience, seniority or performance, can justify a legal pay gap.
- Invalid external circumstances: Events such as a pandemic, labour shortage or force majeure do not create a wage difference.
- Zone of uncertainty: The Court of Appeal expressly chose not to rule on the legality of a standby bonus paid by the day, week or month, regardless of hours worked. Employers should exercise caution before implementing this type of measure. If in doubt, contact our Labour and Employment Law team to secure your practices and avoid any legal risks.
On October 21, 2025, the Court of Appeal of Quebec ruled on a case where an employer had offered a bonus to employees who agreed to be available at least 30 hours a week. At issue was the application of section 41.1 of the Act respecting labour standards (hereinafter, “ARLS”), which prohibits certain wage disparities based on “employment status.” The employer presented this measure as a simple incentive, put in place in a context of a labour shortage.
However, this decision serves as a reminder of a clear rule: an employer may not grant a salary benefit that creates a gap based solely on employment status, even in times of recruitment difficulties.
What Happened: The Facts and the Initial Judgment
In this court case, Répit-Ressource de l’Est de Montréal was contesting a Québec Court judgment from July 18, 2024, ordering it to pay $26,965.62 to the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”).
During the pandemic, faced with a shortage of employees, the company had introduced a bonus for its home care attendants who were available at least 30 hours a week. This bonus was prorated according to hours worked: initially $80 every two weeks, then increased to $160 per pay period, i.e., about $2 more per hour.
The CNESST contested this measure, arguing that it violated section 41.1 of the ARLS, which prohibits paying an employee less than their colleagues solely because of their employment status. The trial judge agreed with the CNESST: the additional amount paid was not a simple bonus, but an increase in the rate of pay, which is prohibited by law.
Section 41.1 of the ARLS prohibits an employer from paying an employee a lower hourly rate than their colleagues doing the same tasks at the same location because of their employment status, notably because they work fewer hours per week. For example, this may apply to a part-time or temporary employee.
For a difference in wage rate to be permissible, it must be based on a valid reason related to the employee or their work, such as experience, seniority or performance. The employer must be able to prove this.
In other words, if an employee receives a lower hourly rate simply because they work fewer hours or are not permanent, this constitutes a breach of the law.
Lessons From the Court of Appeal
1 – A Bonus Paid in Proportion to Hours Worked is Equivalent to a Pay Raise
The Court of Appeal confirmed that the availability bonus paid to employees is not a simple one-off bonus, but rather an increase in hourly pay; in other words, any amount proportional to hours worked that increases the hourly wage must be considered as an increase in the regular wage rate. In this situation, the bonus offered is no different from a direct increase in the hourly rate.
2 – Wages Cannot be Based Solely on Employment Status
The term “employment status” includes various types of employment: regular, temporary, casual, part-time, probationary, etc. The Court pointed out that section 41.1 of the ARLS prohibits any difference in wages based solely on this criterion.
In this case, the availability bonus paid only to employees available at least 30 hours a week created a disparity based on their type of employment. An employee’s simple availability is not a valid reason for paying differently: it’s an integral part of their professional situation.
To legally justify a wage differential, the employer must invoke a real reason related to the work or the employee, such as experience, seniority or performance. External circumstances, such as pandemics or labour shortages, are not enough. Even in exceptional situations or cases of force majeure, this rule cannot be waived.
The Court thus emphasized that the protections of section 41.1 are strict: all employees performing the same work in the same place must be paid fairly, with no exceptions based on employment status or market conditions.
