Following the release of the Changing Workplaces Review in late May, the Ontario Liberals started making promises. They didn’t address all 173 of the report’s recommendations, but they dangled a minimum-wage hike, a requirement for greater advance notice of shifts, and more vacation time before voters with all the fanfare of a weekend dad showing up on Christmas Eve with an armful of colourfully wrapped presents.
Some of the recommendations they’ve ignored, such as ending the separate, lower minimum wage for underage employees and liquor servers, have been discussed plenty. Others, including a special exemption that allows employers to circumvent overtime-pay requirements by averaging employees’ hours over a multi-week period, have gone mostly unnoticed.
Under the Employment Standards Act, Ontario employees are entitled to overtime pay of at least time and a half when they work more than 44 hours a week. But the exemption means employers don’t have to start paying overtime until employees have worked more than 176 hours a month.
I first heard of this while reporting a piece about the custom, in some high end restaurants, of paying cooks for an 8-hour shift but expecting them to show up a couple hours early every day, unpaid; that’s the only way they can get their prep work done in time for dinner service. It was a complicated enough bit of storytelling, explaining why cooks do this (to get ahead), why restaurants do this (they don’t admit it happens), and how it’s all legal enough.
It was during this process that the communications director for a restaurant group employing more than 1,000 workers told me they have permission from the Ministry of Labour — and from their employees — to adhere to what they called a “rolling four-week standard.”
I couldn’t believe it. Why would any employee sign away their right to overtime pay? And why would the Ministry grant permission for employers to circumvent labour laws, which are meant to protect workers’ rights?
But the communications director provided me with the documentation, and the Ministry confirmed the approval, along the rationale behind it. In this case, the Ministry said the company wanted to provide scheduling flexibility for employees, and that it would enable them to trade shifts or take on extra work at other locations.
“The employer noted that normally employees do not work excess hours,” wrote Ministry spokesperson Janet Deline in an email, “but for special events such as Winterlicious and Summerlicious, excess hours are available. Employees who wished to earn more money by working more hours would be permitted to do so if the averaging overtime approval is granted.”
So cooks can earn more money if they get permission to work more hours. But with the provision for averaging in place, those hours don’t count as overtime.
Over a one-year period (2014-15), the Ministry granted 887 exemptions to businesses in the manufacturing, landscaping, and health care sectors, among others. A Freedom of Information request yielded a list of 31 approved exemption applications bearing the NAICS code 722 — indicating foodservice and drinking establishments — from between January and April of 2016.
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The Changing Workplaces Review refers to a “patchwork of exemptions” resulting in only a minority of employees being fully covered by the Employment Standards Act. Those not fully covered are disproportionately recent immigrants and young people.
The review found that approval for averaging hours is routine. “It is not clear that there is any justification for this practice. If there is a justification, it should be addressed on a sectoral basis,” the review states. “To the extent it is allowed, it undermines the right to be paid overtime pay.”
Deline says, “Exemptions are an important component of the Act because they provide flexibility and variation for some industries that simply could not operate without modified standards. Overtime averaging provisions also provides flexibility for work-time arrangements and benefit both the employer and employee. They are not intended to be a mechanism for employers to evade their overtime pay responsibilities.”
In order to get permission from the Ministry, the employer must also have their employees’ permission. Some of the cooks I spoke with for the original story said they were handed a document only after they’d started their employment, and they didn’t understand what they were signing.
That’s not to blame either party or suggest there was any deception involved. But when researching the story, I found that the justifications for high-end dining cooks working unpaid hours all centred around the idea of “passion.” Working for free was perceived (by cooks, chefs, restaurateurs) as a demonstration of commitment to the artistry of cooking, of a willingness to learn, and of a desire to advance in the field.
But the businesses named in the FOI for averaging approvals included Tim Hortons and Subway locations. What’s the rationale behind workers there signing away their right to overtime pay?
There’s no reason to blame the franchisees either; they’re no more in the wrong than any taxpayer who claims a rightful deduction. If we can get away with paying less, we will. It’s the Ministry of Labour’s role to ensure there are as few opportunities as possible for employers to take advantage of their workers.
“There’s a cleanup that needs to happen in order for people to adopt new ways of doing things,” says Amanda Peticca-Harris, director of operations for Pizzeria Libretto, an upmarket Toronto chain. “It needs to be the cool thing. And I think that’s where we’re at right now. You have workers who are demanding to be treated better. And you have a couple prominent, big cases that freak other restaurateurs right out. And then they start to try to pull their shit together. In HR land we call this the ‘Ghomeshi Effect.’ Because part of what happened with Ghomeshi is that things that were masked in the workplace stopped being hidden.”
More than ever, Peticca-Harris says, restaurant workers are learning what their rights are. “You saw this last year with people coming forward in our industry, claiming sexual harassment. And it started to spiral. People are like, ‘I shouldn’t be sexually harassed in the workplace. I shouldn’t be assaulted in the workplace. Oh yeah, by the way, I should get paid properly.’”
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