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The Question

I work as a server in Ontario and I used to get the liquor server’s minimum wage of $12.45 per hour. Now that our city is in lockdown again, my employer wants to keep me on as a takeout clerk. I’m no longer serving alcohol to guests, but we sometimes sell sealed alcohol. Should my wage be increased to the provincial minimum of $14.25 per hour?

The First Answer

Carly Crawford, lawyer, HHBG Lawyers, Vancouver

Some provinces/territories allow exceptions to the general minimum wage rate for certain occupations. In Ontario, Quebec, and BC, employees who meet the definition of a “liquor server” may be paid a lower minimum wage rate. This definition varies slightly by province and is found in your province’s employment standards legislation.

In BC, a “liquor server” is an employee who (1) works primarily “as a server of food or drink or both,” and (2) who directly serves liquor to customers in a licensed establishment as part of their regular duties considered altogether, not on a shift-by-shift basis. For servers or other employees who do not meet both parts of this definition (e.g., hosts, cashiers, bussers, liquor store employees, employees working at unlicensed establishments), general minimum wage applies.

There are at least two reasons why you may not be a “liquor server” if you worked in BC. First, you are “selling” sealed liquor, not serving it directly to customers. Even if selling liquor is considered “serving,” it must be part of your regular duties, which may not be the case here. I recommend that you compare your province’s “liquor server” definition with your personal circumstances.

If you think you may not be a “liquor server,” you should ask your employer for pay at general minimum wage (including retroactive pay). If your employer disagrees, please contact your province’s employment standards office or an employment lawyer in your province. You may be able to file an employment standards claim for the wage difference if successful. Please also ensure you meet any deadlines for filing this claim (usually within months or a year of the issue arising).

The Second Answer

Nadia Halum Arauz, associate, Whitten & Lublin Employment Lawyers, Toronto

The COVID-19 pandemic and the resulting business closures have given rise to many interesting questions that force us to look at the laws that are in place and the purpose behind those laws. Presumably, the reason why the minimum wage for liquor servers is lower than that of other employees is because they sell liquor to which a mark-up is applied. This mark-up leads to higher bills, and presumably higher tips, and there is an assumption that the tips will be able to subsidize the reduced minimum wage. However, where the COVID-19 pandemic has changed the way patrons dine and restaurants operate, we need to re-examine whether those exceptions to minimum wage continue to make sense.

With respect to your question, it is necessary to examine the language in the exemption closely: For example, in Ontario, the $12.45 minimum wage applies “for employees who, as a regular part of their employment, serve liquor directly to customers, guests, members or patrons in premises for which a licence or permit has been issued under the Liquor Licence Act and who regularly receive tips or other gratuities from their work.” If serving alcohol is unusual or unexpected, it may no longer be a regular part of your employment, and the reduced minimum wage no longer applies.

You can bring this up with the restaurant but if you cannot reach an agreement as to what your minimum wage should be, it will be up to the Ministry of Labour to decide what your minimum wage for the period of time you were not regularly serving liquor.

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