There have been Dr. Dre albums in the works for less time than Ontario’s Changing Workplaces Review. So after two years in the studio, the provincial government’s proposed amendments to the Employment Standards Act will need to contain some meaty ideas, or at least solid guest verses by Snoop and Kendrick, to avoid disappointing the fans.
The report will be made public on May 22, but early leaks say it will feature “significant” and “sweeping” reforms to Ontario employment laws, with one source telling the CBC that the recommendations will include increased annual paid vacation time and universal sick days. A minimum wage hike isn’t in the report but is being considered separately; it may jump from $11.40 to as high as $15. Earlier reports also indicated that other proposals being considered include abolishing the lower minimum wage for minors ($10.70) and alcohol servers ($9.90); lowering the threshold for overtime; and requiring employers to provide advanced notice of shift schedules.
These potential changes are a potential boon for workers, and arguably pose a threat to the profitability of small businesses. But they are in an important sense irrelevant in the restaurant world — because they make the mistake of assuming that existing laws are being upheld.
“Before they think about introducing new rules, they should focus on enforcing the ones currently in place,” says Adam Vettorel, chef and co-owner of North & Navy, in Ottawa. ”That would improve the lives of thousands of restaurant workers across the province.”
The first law Vettorel would like to see enforced: paying cooks what they’re legally entitled to, for the number of hours they actually work.
“Very few restaurants pay overtime,” he explains. “Many restaurants pay a day-rate. This often translates to less than minimum wage. Many fine-dining restaurants start paying the cooks at 2 or 3 p.m. even though they are expected to show up at noon, so they have enough time to prep their station.” While not ubiquitous, it’s fairly common for cooks at fancy restaurants to work 50- or 60-hour weeks, while only clocking in and getting paid for 40 of them. Labour inspections are only triggered by employee complaints.
The biggest effect of the coming changes is going to be on wages. Whether the report, and subsequent legislation, is aimed at servers, underage employees, or the overall minimum wage, paying everyone a fair, hourly rate will have a transformative effect on the industry. And not necessarily one that everyone will like.
Disputes over minimum wages are usually between those who believe that rising wages will automatically result in jobs cuts and economic stagnation, and others who maintain that people should be able to live off of the money they earn from working a reasonable number of hours. Economists in the former camp, who also say that a rise in labour costs will lead to a rise in prices, are probably looking to Massachusetts or Washington, which currently have the highest minimum wages in America ($11 US), as indicators of how an increase would affect Ontario.
Changes in wage rates are more complicated in the restaurant industry, though, because a good chunk of the restaurant economy is hidden: 15 or 20 per cent of revenue is generated in the form of tips. This money is not considered wages, but servers are expected to declare it as income, which they often don’t. The earning disparity between servers and cooks (the former out-earn the latter by about a two-to-one ratio) contributes to an ongoing problem in restaurants, with kitchen staff, unable to earn a respectable living, draining out of the industry.
Raising wages across the board could force restaurateurs to revisit the existing model and coax them to finally reckon with the thorny, nebulous practice of tipping, possibly restructuring the arrangement to be more equitable, and also more lawful, for everyone: cooks, servers, owners, and customers.
It won’t be straightforward, however. While a handful of North American restaurateurs have experimented with eliminating tips, the consensus is that it won’t work unless the practice becomes widely adopted. If any individual restaurant changes its tipping model, goes the refrain of restaurant owners, good servers will just go where they can make more money.
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Another well-intentioned policy that doesn’t really work for restaurants is requiring employers to adhere to a timeline for giving workers advanced notice of their shifts and schedule changes. Restaurants are at the mercy of customers’ moods and the weather, neither of which are dependable. It’s typical for servers to show up for a scheduled shift, only to be sent home after a couple hours because it’s a quiet night.
Large groups can cancel at the last minute, leaving a small restaurant half-empty, and servers at loose ends. And while customers may think a big patio is a license to print money, it requires two extra servers, and a surprise rainfall can turn a good business day into a loss if owners are forced to carry additional labour costs for last-minute shift cancellations.
“How can restaurant owners predict this?” asks Allison Charlebois, executive chef at Woodington Lake Golf Club, in Tottenham. “How will they get around this? Schedule and call them off?”
Getting a shift cut stinks. A server says no to social plans and gets dressed for work, expecting to make money, only to go home empty-handed. But it’s part of the distinctive nature of the restaurant business, and a reason why one-size-fits-all rules don’t always work in this sector.
A lack of predictability is part of the career, and a part of the business that can’t be legislated away.
Updates to the Employment Standards Act are welcome: the independent restaurant world still operates, according to the restaurateurs I speak with regularly, in the same quasi-legal, wild west it did last century. Technological advancements — online reservations, iPad wine lists, Yelp — may give the industry a modern face. But it’s still usual for cooks to be cheated out of overtime pay and servers to declare a fraction of their tips on their taxes.
“Being a business owner I had to make myself aware of all the labour laws,” says Vettorel. “And I realized that for the last 15 years I was never working under conditions that could be described as ‘legal.’”
We have yet to see what actual proposals the Changing Workplace Review contains. And there’s every reason to hope it will provide great benefits for workers across Ontario. But for the restaurant world, it already has the ring of a promise from a child who has never been able to keep his room clean, telling you how he’s going to build a three-storey fort in the back yard.
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