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nine to five
THE QUESTION

I work as a server at a small café that is struggling to hire staff. We used to get two 30-minute unpaid breaks during a nine-hour shift. But recently, to accommodate having less staff on the floor, our boss said he’s cutting it down to one 30-minute unpaid break. Is this legal?

THE FIRST ANSWER

Jim Boyle, lawyer, Forte Workplace Law, Surrey, B.C.

Short answer – this is likely permissible.

In almost all Canadian provinces, provincial employment standards legislation (which sets out minimum terms and conditions of employment for employees to whom the legislation applies, including servers) provides that employers must give employees a 30-minute break after five hours of work (except in Newfoundland and Labrador, where employees are entitled to an hour break after five hours of work). That means, in a nine-hour shift, employees are only statutorily entitled to a single 30-minute break (except in Newfoundland and Labrador).

Even if an employee’s employment contract says they get a second unpaid break, generally speaking, this change likely does not amount to a substantial change to a fundamental term of employment that would allow an employee to quit and claim pay in lieu of notice as if they had been dismissed without cause (i.e. “constructive dismissal”).

The employer will have to pay the employees for the additional 30 minutes of work – this amount may be payable at an overtime premium rate, depending on which province’s employment standards legislation applies. For example, in B.C., employees are entitled to overtime pay for hours worked over eight per day and 40 per week, whereas in Ontario there is no daily limit – only a weekly limit of 44 hours.

If an employee requires a second break because of a ground protected under provincial human rights legislation (for example, a disability), the employee may request that the employer accommodate them permitting them to continue to take a second 30-minute unpaid break.

Every circumstance is different, however, so where an employer changes a term of employment, employees might consider obtaining legal advice.

THE SECOND ANSWER

Charles Osuji and Lydia Iboko, Osuji & Smith Lawyers, Calgary

Your employer is only required to give you two 30-minute breaks if you work 10 hours or more. In Alberta, the Employment Standards Code sets out that an employee must not work more than five consecutive hours without getting a 30-minute meal break. If you have worked more than five hours, but fewer than 10, you are entitled to one 30-minute break. It was your employer’s discretion to grant you the additional 30-minute break, considering you worked a nine-hour shift, not 10.

For workers who work more than 10 hours per day, they are entitled to two breaks of at least 30 minutes each. Breaks can be taken in bursts of 15 minutes or in two 30-minute segments. You may be paid for these breaks or not. It is the employer’s responsibility to ensure that the minimum rest period requirements are met, although they can provide extra breaks or longer periods if they wish.

If an employer and an employee do not agree on a rest period scheduled for a shift, the employer must provide a rest period of at least 30 minutes, at a time chosen by the employer, within or immediately following the first five hours of the shift, and if required, the employer must provide a second rest period of at least 30 minutes, at a time chosen by the employer, after the first five hours of the shift.

This section does not apply if an accident occurs, urgent work is necessary or other unforeseeable or unpreventable circumstances occur, different rest provisions are agreed to under a collective agreement, or it is not reasonable for the employee to take a rest period, as it seems in your situation. The café is understaffed so more hands are needed on the floor.

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