April 4, 2023
The tourism industry doesn’t necessarily conform to the standard 9-to-5 work day, and employers in this industry often seek flexibility in scheduling their human resources to meet demand. While the hours of work and break provisions in the Employment Standards Act (ESA) do provide for such flexibility, there are important limits that as an employer you must be familiar with.
Part 4 sets minimum standards concerning the number of hours an employee can be required to work at a regular wage, and the rate of pay for work performed beyond the regular schedule. For a closer look at the specific provisions concerning hours of work and breaks, see Part 4 of the Act.
Section 35 of the Act says that employers must pay employees overtime rates (which are set out in Section 40 of the act) if the employer requires, or directly or indirectly allows, the employee to work more than eight hours per day or 40 hours per week. This requirement does not apply to employees working under an averaging agreement.
The phrase “directly or indirectly allows” places the onus on you, the employer, to control when an employee works. If you don’t want an employee to work overtime, you must direct the employee not to do so, and then you must ensure, through supervision if necessary, that overtime is not being worked. If you have not requested an employee to work overtime but suspect or know that the employee is working overtime – and you don’t stop the overtime work – you will be liable to pay overtime rates.
Section 36 of the Act requires that you must either ensure that an employee has at least 32 consecutive hours free from work each week, or else you must pay the employee 1.5 times the regular wage for time worked by the employee during the 32-hour period. Again, different rules apply to employees covered by averaging agreements.
You must also ensure that employees have at least eight consecutive hours free from work between each shift of work. This does not apply in an emergency.
For more information see Interpretation Guidelines – Section 36 – Hours Free From Work.
Section 39 of the Act says that, despite any other provision of the act, an employer must not require, or directly or indirectly allow, an employee to work excessive hours or hours detrimental to the employee’s health and safety. An employee may refuse to work on the basis that the hours worked are detrimental to the employee’s health or safety, in circumstances where:
For more information see Interpretation Guidelines – Section 39 – No Excessive Hours.
Section 34 of the Act sets out the minimum number of hours an employee must be paid for when called in to work by the employer. This section is designed to compensate employees for attending work when required, but recognizes that employees should not be entitled to be paid for time not worked.
If an employee is required to report for work on any given day, either where they are not scheduled to work or where they are scheduled to work up to an eight-hour shift that day, then the employee is entitled to a minimum of two hours’ pay at the regular wage.
If an employee reports to work on a day when he or she had been scheduled to work more than an eight-hour shift that day, the employee is entitled to a minimum of four hours’ pay at the regular wage rate, regardless of whether the employee starts work.
These requirements do not apply where the employee is unfit to work or fails to comply with the requirements of the Workers Compensation Act.
If work is suspended for reasons completely beyond the employer’s control, including unsuitable weather conditions, the employee is entitled to a minimum of two hours’ pay at the regular wage rate. A lack of customers or business on any particular day or shift is not a sufficient reason to invoke these minimum-pay provisions.
Also note that as an employer you are required to comply with the minimum-daily-hour provisions even in situations where you and the employee agree that the employee will go home early without pay. An employee who reports to work but is unfit for work only has to be paid for time actually worked.
For more information see Interpretation Guidelines – Section 34 – Minimum Daily Hours.
Section 34 of the Employment Standards Regulation provides for a number of exclusions of certain employees from the hours of work and overtime provisions of Part 4 of the Act. Most notably, an employee in a position of management does not qualify to receive overtime hours. For more information on these exclusions, visit the Interpretation Manual – Section 34 (Regulations).
Section 32 of the Act says that you must provide employees with a 30-minute meal break at least once every five hours. An employee is not entitled to be paid for the meal break unless you require the employee to work or be available for work during a meal break.
Requiring your employees to be “on call” during a meal break will result in the employee being paid for the break. Further, an employee will be entitled to be paid for meal breaks if the employee takes meal breaks during a time when he or she is travelling as part of the job.
However, an employee is not entitled to be paid for meal breaks where he or she can choose whether to remain at the worksite during the meal break and can choose to interrupt the meal break to assist customers or to remain on break.
The act does not stipulate when a meal break can occur or whether breaks must take place at the same time every day. Therefore, you may schedule the meal breaks at a time convenient to your operations and may change the time when meal breaks are taken.
However, if you fail to take any steps to ensure that meal breaks occur, it is likely that you will be held liable to pay for meal breaks. If you do not provide employees with an opportunity to eat during a shift, you may be subject to penalties under the act.
There is no requirement in the act to provide employees with “coffee breaks” in addition to the meal break provided for in the Act.
For more information see Interpretation Guidelines – Section 32 – Meal Breaks.
A split shift is a shift which is separated by a number of hours off. Section 33 of the Act says that an employee working a split shift must complete the shift within 12 hours of starting the shift.
Restaurant workers often work split shifts. They may start at noon and work until 3:00 pm. Then, they may not be required to work for two hours. At 5:00 pm they begin work again, and they may be required to work until midnight. In this example, the employee has been required to work 10 hours in a 12-hour period. This complies with the requirement that a split shift must not stretch over more than a 12-hour period.
For more information see Interpretation Guidelines – Section 33 – Split Shifts.
Also, for more information about minimum standards for hours of work and breaks, view the Hours of Work and Overtime Factsheet.
Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.
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