'Tis the Season to Be Wary: Top Six Employment Standards to Help Workers Beat the Winter Retail Blues

By: 

Jennifer King

Customer service is especially hectic this time of year, with employers (and often customers) making over-the-top and sometimes illegal demands on service workers. So, as we ring in the New Year, and as TAPS’ Employment Standards Legal Advocacy Project (ESLAP) turns one, we give you the Top Six Wishes we hear from retail and customer service workers. This is a great way to know your rights and to support the workers who serve you every day.
 
1. Wages for Every Hour Worked
Employers regularly demand that workers show up and begin work before their scheduled shift, and paid work, starts. It’s also common to be asked to come in for staff meetings, special product training, or even decorating or inventory parties, work which increases your employer’s profit, and not be paid. This is an example of wage theft (see the February-March 2015 Taproot article on wage theft at tapsbc.ca). It is illegal not to pay for employees’ time and effort during any type of work or training, and there has not been a lower “training wage” in BC since the shamefully low $6 training wage was scrapped in May 2011.

And don’t forget: if you’ve worked for at least 30 days, and 15 of the last 30, you are entitled to an average day’s pay on the pay period of a statutory holiday (for example, December 25, January 1) and a wage rate of time-and-a-half if you work that day (double time after 8 hours).

As of September 15, 2015, the minimum wage went up two dimes to $10.45. At ESLAP we hear from service workers whose employers are still stealing from them every hour by paying the old minimum wage. This year a strong movement has emerged across territories in BC shouting #fightfor15 for a more equitable minimum wage, like workers have won in Seattle and other cities.  Learn more at fightfor15bc.ca.  Find Victoria events at “Fight for Fifteen Victoria” on facebook. Here on Lkwungen and WSANEC Territories, the Community Social Planning Council (CSPC) has calculated the living wage at $20.03.
 
2. Overtime
In order to earn overtime pay, an employee must be acting at the direction of an employer, for example, if your boss says you can’t go home until the job is done. Overtime kicks in after 8 hours in a day to time-and-a-half of regular wages, and double time after 12 hours.  Weekly, after 40 hours of straight pay, additional hours must be paid at time-and-a-half.
 
3. Sick Days
Sick days are not provided under basic BC Employment Standards. Prince Edward Island is the only province with paid sick days and that’s only one day after five years. One of the worst reasons we hear for clients getting fired is for taking the day off when they are sick to spare their co-workers and customers. Employment standards precedence doesn’t consider calling in sick minor or major misconduct that would give an employer just cause to fire you. If you’ve worked for less than three months, however, there is no legal obligation for your employer to prove just cause or give you any notice or severance pay.

No sick days and termination without just cause are powerful reasons for workers to come together and support each other.  If you’re interested in spreading the word and taking action, check out our friends at the new Retail Action Network. They’re online, meet regularly, and are also joining TAPS, Vancouver Island Public Interest Research Group, and the CSPC in conducting focus groups and wage worker surveys this season to gather numbers on this epidemic. Why not get in touch and tell your service work stories. 
 
4. Shifts Scheduled Each Week
In 2002, the requirement in the Employment Standards Act (ESA) that employers post schedules and give workers at least a day’s notice of any schedule changes was repealed. When it’s all-hands-on-deck or when shifts are cut in the quiet new year service season, shift changes can wreak havoc on workers’ nerves, relationships with bosses and co-workers, and ability to pay their rent. The BC Employment Standards Coalition (bcemploymentstandardscoalition.com) recommends that this requirement be re-instated into the ESA with: a 48-hour notice period; posting in the first languages of all workers; and consent required for planned schedule changes, which employees could withhold for family responsibilities without risk of discipline.
 
5. A Break After Five Hours’ Work
The law says that you are entitled to an unpaid half-hour break after every five hours. If you are required to be able to jump up and serve customers during this break, you need to be paid for it.
 
6. A Uniform and Care of Uniform for Free
A common misconception is that it is the service worker’s obligation to purchase and maintain specific clothing, footwear, and even protective gear or tools required by their employer. Sure, a restaurant can require you to wear black pants and a white shirt, but once you are required to wear a certain brand or very specific style of shirt, it is likely that you are being asked to pay for your boss’s business costs, which include cleaning uniforms. Section 21 of the Employment Standards Act says that an employer can only make deductions for Employment Insurance, Canadian Pension Plan contributions, and taxes, but explicitly not for business costs or gratuities.
 
Regardless of how you and yours mark the winter season, we hope you make time to support each other in the workplace in the face of back-to-back shifts and long lineups. TAPS Employment Standards advocates can provide confidential legal advice and support on these and other employment standards issues for non-unionized workers. Contact us at TAPS, and find us and upcoming projects and events at @ESLAPTAPS and facebook.com/4theworker.