Canadian Employment Law Today

August 29, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Did the restaurant owe wages to all the employees who clocked in early? OR Were wages not owed to the 38 employees for time before the start of their shifts? Restaurant served with order to pay servers more THIS EDITION of You Make the Call fea- tures restaurant employees who frequently "clocked in" before the actual start of their shifts, causing some confusion over when they should start getting paid. Vito's Pizzeria is a restaurant in Monc- ton, N.B. e servers at Vito's worked on a schedule in which each week they received their hours for the following week. Roxanne Ruppss started working at the restaurant as a server in June 2016. At the beginning of her employment at Vito's, Ruppss was trained by another server who told her to report to the hostess stand when she arrived for work. At the hostess stand, servers were to sign their name on a chart of tables. Ruppss was told that the ear- lier she arrived, the sooner she would be as- signed a table to serve and she was expected to "clock in" 15 minutes before her sched- uled shift. Rupps soon observed that most servers arrived 10 to 15 minutes before the start of their shift, though there was no con- sistency as to when they clocked in and she didn't see any written policy as to when they should arrive. Rupps began clocking in 15 minutes be- fore the start of each shift as per her trainer's instructions, and she usually started doing tasks at that point. However, by September she realized she wasn't being paid for the time between her clock in and the start of her shift, so she fi led a complaint with the New Brunswick Employment Standards Branch. Rupps relayed the situation to an employ- ment standards offi cer, who found that she was required to arrive 15 minutes before the start of her shift. e offi cer reviewed the restaurant's payroll records for all the serv- ers over the previous two years — which Vito's supplied with no diffi culty — and de- termined that most servers arrived before the start of their shift, but there was no set time when they did. Rupps usually arrived between 10 and 13 minutes before the start of her shift, but this varied. e offi cer determined there was money owed to the employees and met with a mem- ber of the restaurant's management, who said it was common practice in the industry for servers to arrive before the start of their shift, though usually when the servers at Vito's did it they just talked and drank tea or coff ee together. e manager also said that since Vito's was a family-run restaurant, he was disappointed an employee had fi led a complaint without informing management. Following the meeting with the offi cer, the restaurant changed its practice and no longer allowed employees to clock in be- fore the start of their shift. However, a few months later the offi cer issued an order to pay wages and vacation pay to each of 38 employees who were identifi ed as having clocked in before the start of their shifts on a regular basis. IF YOU SAID the restaurant didn't owe wages to its employees, you're right. e board found there wasn't any real evidence that the restaurant required or instructed its employees to arrive at work 15 minutes before the start of each shift and clock in. No one in management told Rupps to do so; only the server who trained her gave her unoffi cial advice to do so. In addition, Rupps said she didn't see any formal policy stating as much and the employment stan- dards offi cer didn't see any evidence of such a policy. In fact, after the employment stan- dards offi cer met with Vito's management, the restaurant stopped allowing employees to come in early at all to avoid any confusion on the matter, said the board. e board also found that when the offi - cer reviewed the payroll records, there was no consistent time when the 38 employees came in before there shift — making it fur- ther unlikely there was any regular practice in place to come in 15 minutes early. In ad- dition, though Rupps said she performed some tasks when she clocked in early, the only evidence of what the other servers did when they came in early was the manager's account that they just talked and drank tea or coff ee. e offi cer's order to pay was based on an assumption that they all worked early but she had no real evidence to that eff ect since she didn't interview any of the other servers, said the board. e board vacated the order to pay 37 of the employees for the times they clocked in early. However, because Rupps directly told the offi cer she had done some tasks after clocking in before her shift — though not always 15 minutes before — it ordered the restaurant to pay Rupps $96.59. For more information see: • Various Employees and Vito's Pizzeria Food Production ltd., Re, 2018 CarswellNB 272 (N.B. Lab. and Emp. Bd.).

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