I’m a server at a restaurant and they have a policy that we can’t clock in until we seat our first table. On slow days, I might be sitting around and waiting for over an hour until this happens. Is this legal? If not, how should I report it? And am I entitled to back pay for the previous shifts where I had to clock in ‘late’?
The first answer
Madeeha Hashmi, lawyer, Karimjee Law, Toronto
Employers are generally required to pay employees for all time spent performing what is considered “work.” Where you are not required to be at the workplace and are simply on-call, this is generally not considered work and you are not entitled to pay. However, if you are required to be onsite at the workplace and waiting to be assigned or put to work, this would be considered work and, as such, an employer would be required to pay wages for this work time.
In Ontario, the Employment Standards Act (ESA) states that work shall be deemed to be performed where an employee is not performing work and is required to remain at the place of employment waiting or holding themself ready for a call to work.
If the employer requires you to be at work on standby without pay, this is not legal. You can ask your employer to pay you for this time including back pay for hours worked on past shifts. It would be prudent to report your claim to the employer in writing so that there is documentary evidence that you sought to enforce your rights under the ESA. This is important because you may be concerned that the employer may discipline or terminate you if you seek payment. It would be illegal for the employer to punish you for enforcing your rights under the ESA, but unfortunately it is a risk.
If your employer refuses to provide the back pay, you can make a claim to the Ministry of Labour seeking payment of the unpaid wages. Additionally, the ESA includes protections against reprisal, so if you experience a reprisal from the employer when you seek payment of wages, you could also make a reprisal claim to the Ministry of Labour.
The second answer
Jason Edwards, Associate, Pink Larkin, Halifax
You’re working for free.
If you have a job that pays an hourly wage, your employer must pay you for any time they tell you to be at work. It doesn’t matter what you’re doing – if they tell you to be at work, you are entitled to be paid.
You should maintain a clear and comprehensive record of your hours worked and compare it to your paycheque. Do not depend on your employer to keep a perfectly accurate account. Remember, your wages are a cost to your employer.
If you are not being paid for all time worked, you can make a complaint through your province’s employment standards enforcement mechanism. Provincial employment standards laws all have a “protection of pay” section that requires employers to pay employees for their work.
Your claim for unpaid wages will be time-limited. The limitation period depends on where you live. For instance, Nova Scotia’s Labour Standards Code has a six-month limitation period, so you can’t claim any unpaid wages for time worked more than six months before the complaint was made.
Before you make a complaint, you should talk to your co-workers about this practice. If you all file employment standards complaints together, at the same time, you will increase your bargaining power and decrease the chances the employer will single you out for reprisals.
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