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Employment Standards Act Q & A

Q: My restaurant manager sometimes covers the shifts of people who call in sick by working extra hours herself. Recently, the bartender had a car accident on the way to work, so instead of going home at her regular time, my manager stayed and tended bar for the evening. Since she is the manager, I expect her to make sure that the bar is staffed, and I approve of her covering shifts. She is paid on salary. Do I have to pay her any extra wages to work the extra shifts?

A: Additional wages may be required. Managers are not entitled to overtime pay if they work additional hours, but they cannot be expected to work for no pay. If the manager regularly works (for example) 45 hours a week, and receives her salary based on the understanding that she works a 45-hour week, she is entitled to receive her regular wage for any hours that she works in excess of 45 in the week. Her regular wage would be the hourly rate that the salary is based on.

Keep in mind, an employer must not require or allow an employee to work excessive hours or hours harmful that are harmful to the employee’s health and safety.

Q: I have some employees who are always stepping outside to take smoke breaks. Every couple of hours, they are gone for about 10 minutes. This is in addition to the meal breaks and coffee breaks that they are entitled to. Do I have to let them take these smoke breaks?

A: No, employees are not entitled to smoke breaks. The Employment Standards Act says that after working five hours, an employee must be provided with a half-hour meal break. Any other breaks, such as coffee or smoke breaks, are given solely at the employer’s discretion.

Q: A few weeks ago, my night-time supervisor quit. Well, he didn't actually tell me that he quit, but he did tell me that he was thinking of leaving and that he had been interviewed for a restaurant manager job with another company. I knew that he wasn't going to work as hard for me, so I took him off the schedule. He's sent me one of the Employment Standards Self Help Kits, and he's claiming three weeks pay because I fired him. But he quit!

A: The supervisor didn’t quit. He shared his potential future plans. He may not have been successful in his application with the other company, or he may have decided not to accept a job offer from them. Employees are entitled to look for other work and go to job interviews without fearing they will lose their existing job. Even if an employee provides an employer with formal notice that he or she will be leaving, the employer must let the employee either work out the notice period, or else pay him or her compensation for length of service. In this case, the supervisor likely has a valid claim and deserves pay. If he worked for the company for more than three years — but less than four years — the correct amount would be three weeks' pay.

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Q: Credit card companies charge me a percentage of the bill if the customers pay on their credit card. I know that that is a cost of doing business that I must pay. But when they put the servers tip onto the credit card, do I have to pay the amount AND the percentage to the server, or can I deduct the amount that will be charged on the percentage from the employee’s tip?

A: : The percentage charged on the tip is a cost of doing business. Under the Employment Standards Act, an employer may not use an employee’s tips to cover business costs; and therefore, may not deduct the percentage that will be charged by the credit card company for processing the tip.

Q: I provide my employees with a shirt with the company logo printed on it. Each staff member gets two shirts, and I provide lockers and changing space. There is a washer and dryer in the restaurant, and staff are told to use these machines to wash their uniforms. Some staff prefer to take them home to wash. Do I have to pay staff who choose to take their uniforms home for the cost of cleaning when I’ve provided everything that they need here at the store?

A: No. Staff who choose to wash their uniforms at home, when an alternate method (having it done at work) is available, do not have to be paid for cleaning their uniforms. Remember, though,  that the time spent at the work place washing and drying the uniform is work, and wages must be paid.

Q: My kitchen staff cook and eat their meal in the kitchen. They seem to be having a good time, laughing and talking, and it looks to me like they are having a break. However, some of them are telling me that because they don’t get to leave the kitchen, I have to pay them for the break.

A: A lot of people eat their meals in the work place, and do personal business, read or chat with co-workers. If it is by the employee’s choice that he or she stays at the workplace and eats a meal, the break is not paid. An employee can only expect to be paid for breaks when the employer expects them to stay around and be available to work if there are customers.

Q: When I get my paycheque, I’m never sure if it’s correct or not, since the number of hours that I worked isn’t shown. I know that I worked some overtime, but I don’t know if it’s been paid or not.

A: The ESA requires that paycheques show the number of hours worked. If the employer is not providing that information, he or she should be referred to the ESA fact sheet on paying wages. The employer may not know of the requirement to state the number of hours worked. Employees in your scenario should start keeping their own records, day by day, so when cheques are received, they will know if they have been paid for all hours worked.

Q: My servers all sign a sheet stating that they are fully responsible for the money that I give them as a float. This means if they lose the money, I can deduct the amount they lost from their next cheque. Is that right?

A: No, it’s not. Loss of money or product is a regrettable cost of doing business. Servers cannot be required to pay money that has been lost even if it is through their own carelessness.

Adapted from BC Restaurant News (August, Oct/Nov. 2003). Last updated April 30, 2011. Information provided by HARRIS & COMPANY. For more information about HARRIS & COMPANY, please visit harrisco.com.

This article may not be republished without the express permission of the copyright owner identified in the article.