Preparing for Black Friday, Cyber Monday, … and Boxing Day!
Black Friday madness has been ongoing and is finally here, with Cyber Monday, Christmas, and boxing day around the corner. Many employers and employees are no doubt scrambling, but it’s important to know how employers can structure an employee’s work schedule on hectic shopping days.
Employment Standards Act Sets the Rules
For most employees, the Employment Standards Act sets out the minimum requirements and protections that employees get during a work day. An employment contract can also set the terms and conditions, but these terms must meet the ESA or provide better benefits. If an employment contract gives an employee less rights than the ESA, then that term is unenforceable. Contracting out of the ESA can have huge implications, like significantly increased severance packages. Let’s look at some relevant rules in the ESA that are important for retail (and other) employees.
Employers Cannot Dock Pay for Mistakes
If an employee makes a mistake that leads to a loss to the business, it is illegal for an employer to dock their pay because of the mistake.
Maximum Hours of Work in One Day = 8
The maximum amount of hours an employee can work in a day is 8. The maximum per week is 48. The only way to work more than 8 hours in a day is to have a written agreement between the employer and employee, authorizing that the employee can work more than 8 hours. the maximum still remains 48 hours in most cases.
Time Off Between Work
Generally, an employee must be allowed 11 hours free from work in each day. They also must be allowed 8 hours free from work between shifts.
Lunch and Regular Breaks
Every 5 hours, employees must be provided a 30-minute unpaid break. These can be split up into two-15min breaks during the five-hour shift. These breaks don’t have to be paid.
Three Hour Rule
If an employee who comes to work but is told to go home, they must be paid at least three hours of pay if their regular shift was scheduled more than three hours.
Overtime Pay
If an employee works more than 44 hours in a week, they get paid 1.5 times their hourly rate for each hour above 44. This even applies to employees who get paid a regular salary. This does not apply to true managers. Like maximum hours of work, employers can average an employee’s hours of work over several weeks. If the average hours of work per week is less than 44 hours, then no overtime pay is needed. Employees must agree in writing.
Instead of being paid 1.5 times, employees can be given paid time off work if the employee agrees.
Minimum Wage
Most employees must earn the minimum wage of $14.00/hour. Even employees who earn commissions, their average rate must be at least the minimum. Some exceptions apply like bartenders who have minimum wages set at $12.20/hour.
Equal Pay for Equal Work
Employees who do substantially the same work must be paid the same. This may not apply if the difference in pay is due to a seniority system, merit system, a system that measures earnings by quantity or quality of production, or any other factor other than sex.
Reprisal
Any employee who tries to exercise their rights under the ESA, Ontario Human Rights Code, or the Occupational Health and Safety Act are protected from reprisal. This means an employer cannot punish, discipline, or retaliate against an employee for asking an employer to do something they have to do under the law.
Accommodation
Just because it is a busy time, employer still must accommodate an employee’s disability to the point of undue hardship. Loss of money is rarely undue hardship.
Protection from Harassment
As some stores may get rowdy, employers have an obligation to provide a safe working environment to their employees. This includes protecting employees from co-workers and customers.
Conclusion - Happy Shopping
If you’re a customer, happy hunting! If you are an employee or employer, good luck with the holiday season ramping up! It’s always good to know the rights and obligations of the workplace.
Jason Wong is a Toronto Employment Lawyer practicing exclusively employment, labour, and human rights law. If you are an employee or employer who has questions about workplace rights, please contact Jason at jason@wongemploymentlaw.com or 647-242-5961.