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. Now 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.

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. Further, since the Employment Standards Act was amended in May of 2019, employers are now expressly prevented from withholding, deducting or requiring an employee to return or give their tips to the employer.

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.