Split-shift waitress loses bid for call-in pay

New Brunswick’s labour board looks at the entire workday, not just one shift, in determining if worker is eligible for minimum reporting wage

An employee who is working a split shift — coming in, going home and then coming in again later — is not normally entitled to the minimum reporting wage if one of her shifts is for less than three hours, the New Brunswick Labour and Employment Board has ruled.

Under the province’s Employment Standards Act, employees who are required to report for work, and do so, are entitled to a minimum of three hours’ pay.

But in the case of a split-shift worker, the board said the entire workday must be taken into account, not just one of the shifts, in determining whether or not the employee is entitled to the minimum reporting wage — also known as call-in pay.

The ruling came after a waitress tested the province’s employment standards legislation, alleging she was entitled to call-in pay when she came in to work the lunch shift and was sent home after less than three hours. It marked the first time the issue of call-in pay for split shifts had come before the board.

Section 16.1(1) of the Employment Standards Act contains a provision that states an employer must pay a non-bargaining employee a minimum of three hours pay if the employee:

•reports for work as required by her employer;

•has a regular wage rate of less than twice the minimum wage rate; and

•is regularly employed for more than three consecutive hours in a shift.

Susan Belliveau worked as a waitress at a restaurant in Fredericton that served lunch and supper. She was scheduled to work five days per week. Her shifts were generally posted as “12 p.m. to ?” and “5 p.m. to ?”

This meant she was to report to work at noon and was expected to work through the lunch period until she was no longer needed. She would then return at 5 p.m. for the evening shift. The lunch shift usually lasted about two hours and the evening shift continued for about three hours, for a total of five hours per day.

There were also some days, particularly at lunchtime, when Belliveau would report for work but would not begin serving customers until her section of the restaurant was seated, at which point she would punch in. From time to time she would report to work but because of a lack of customers her section would not be seated. When this happened, she would be given a free meal and sent home. She would not be paid for any of this time.

Belliveau filed a complaint on June 16, 2004, under the Employment Standards Act. Following an investigation by the director, the employer was ordered to pay a number of employees a total of $4,486.15. Belliveau’s share was $152.68.

The director took the position that, under the act, an employee who is required to report to work is entitled to a reporting wage of three hours. He reviewed the employer’s records and identified those times when an employee reported to work either at lunch or supper and worked for less than three hours.

The director then determined the difference between the time worked and the three-hour minimum and calculated the balance due to the employees, including vacation pay.

The director did not address the instances were Belliveau reported for work but did not punch in because there was no evidence to support the number of times this occurred.

Employer, employee unhappy with original ruling

Neither Belliveau nor the restaurant were happy with the director’s order and the decision was appealed to the New Brunswick Labour and Employment Board. The employer took the position that it had complied with the legislation and owed nothing to its employees, including Belliveau. Belliveau thought she was entitled to more.

The board said this was the first time it had dealt with a split-shift complaint involving s. 16 of the act, and it could find no other cases on the split-shift issue.

The director of employment standards argued the purpose of the legislation was to compensate an employee for the inconvenience and expense of coming to work where the employee is required to report, does report and does not work for a minimum of three hours.

In this case, there is no doubt Belliveau and other wait staff were directed to come into work at lunch and, consequently, had to put themselves out in terms of their time and related costs such as transportation and babysitting. Therefore, the director said, they should be entitled to the reporting wage for the lunch shift if they did not work three hours.

Board sides with employer

The board said it was arguable that s. 16.1(1) of the act is intended to provide an employee with call-in pay — where the employee is called in to work, the employee is entitled to be paid a minimum negotiated amount for coming into work at the employer’s behest.

But it said that simply wasn’t the issue in this case.

“Here the issue is not the employee called in by the employer occasionally, but rather an employee that was regularly scheduled to report to work for less than three hours, at least at lunch,” the board said.

It said the legislation does not appear to address split shifts. An employee who is regularly scheduled to work split shifts knows what period of the day each of the shifts will take up. Therefore, the director should have looked at the entire workday — not just the lunch shift — to determine whether the three-hour minimum had been met.

“Surely this approach reflects the reality of the split-shift arrangement to which the employee agreed when he or she was initially employed,” the board said. It said the director’s order was “somewhat narrow and legalistic” and failed to acknowledge the fundamental nature of the split shift employment relationship.

Looking at the entire workday, not just one of the shifts, in determining if the employee has worked the minimum number of hours is consistent with the employee’s expectations, the board said.

“The employee chooses to enter into an employment relationship which will provide (her) with approximately five hours of work per shift per workday,” it said. “To divide that day into two independent shifts of a minimum of three hours is inconsistent with that employee’s expectation.”

The New Brunswick board said, in the end, an employee who is regularly scheduled to work a split shift of more than three hours will be entitled to the minimum reporting wage when the total number of hours worked over the entire day is less than three hours.

“And to further illustrate the point, those instances where Belliveau reported to work at noon and did not work or worked less than three hours will result in the payment of the minimum reporting wage when the total number of hours worked in that day are less than three,” it said.

The board sent the case back to the director to recalculate the wages.

For more information see:

Belliveau v. Darin’s Enterprises Inc., 2005 CarswellNB 352, 2005 WL 1491627 (N.B. Labour & Emp. Bd.)

Board comments on other jurisdictions

In making its ruling, the New Brunswick Labour and Employment Board said other jurisdictions in Canada have explicitly tackled split shifts in their employment standards legislation.

Section 58 of the Quebec ¬Standards Act exempts an employee who is required to be present several times in the workday for less than three hours from entitlement to the minimum reporting wage.

In the Yukon, the employer is entitled to make application to the director for an exemption to the reporting pay order, “where the director is satisfied that the nature of the work done by the employee is such that they are usually required to report for periods for less than two hours.”

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