Restaurant served with order to pay servers more

You Make the Call

This edition of You Make the Call features restaurant employees who frequently “clocked in” before the actual start of their shifts, causing some confusion over when they should start getting paid.

Vito’s Pizzeria is a restaurant in Moncton, N.B. The servers at Vito’s worked on a schedule in which each week they received their hours for the following week. Roxanne Ruppss started working at the restaurant as a server in June 2016.

At the beginning of her employment at Vito’s, Ruppss was trained by another server who told her to report to the hostess stand when she arrived for work. At the hostess stand, servers were to sign their name on a chart of tables. Ruppss was told that the earlier she arrived, the sooner she would be assigned a table to serve and she was expected to “clock in” 15 minutes before her scheduled shift. Rupps soon observed that most servers arrived 10 to 15 minutes before the start of their shift, though there was no consistency as to when they clocked in and she didn’t see any written policy as to when they should arrive.

Rupps began clocking in 15 minutes before the start of each shift as per her trainer’s instructions, and she usually started doing tasks at that point. However, by September she realized she wasn’t being paid for the time between her clock in and the start of her shift, so she filed a complaint with the New Brunswick Employment Standards Branch.

Rupps relayed the situation to an employment standards officer, who found that she was required to arrive 15 minutes before the start of her shift. The officer reviewed the restaurant’s payroll records for all the servers over the previous two years — which Vito’s supplied with no difficulty — and determined that most servers arrived before the start of their shift, but there was no set time when they did. Rupps usually arrived between 10 and 13 minutes before the start of her shift, but this varied.

The officer determined there was money owed to the employees and met with a member of the restaurant’s management, who said it was common practice in the industry for servers to arrive before the start of their shift, though usually when the servers at Vito’s did it they just talked and drank tea or coffee together. The manager also said that since Vito’s was a family-run restaurant, he was disappointed an employee had filed a complaint without informing management.

Following the meeting with the officer, the restaurant changed its practice and no longer allowed employees to clock in before the start of their shift. However, a few months later the officer issued an order to pay wages and vacation pay to each of 38 employees who were identified as having clocked in before the start of their shifts on a regular basis.


You Make the Call


Did the restaurant owe wages to all the employees who clocked in early?


Were wages not owed to the 38 employees for time before the start of their shifts?


If you said the restaurant didn't owe wages to its employees, you’re right. The board found there wasn't any real evidence that the restaurant required or instructed its employees to arrive at work 15 minutes before the start of each shift and clock in. No one in management told Rupps to do so; only the server who trained her gave her unofficial advice to do so. In addition, Rupps said she didn’t see any formal policy stating as much and the employment standards officer didn’t see any evidence of such a policy. In fact, after the employment standards officer met with Vito’s management, the restaurant stopped allowing employees to come in early at all to avoid any confusion on the matter, said the board.

The board also found that when the officer reviewed the payroll records, there was no consistent time when the 38 employees came in before there shift — making it further unlikely there was any regular practice in place to come in 15 minutes early. In addition, though Rupps said she performed some tasks when she clocked in early, the only evidence of what the other servers did when they came in early was the manager’s account that they just talked and drank tea or coffee. The officer’s order to pay was based on an assumption that they all worked early but she had no real evidence to that effect since she didn’t interview any of the other servers, said the board.

The board vacated the order to pay 37 of the employees for the times they clocked in early. However, because Rupps directly told the officer she had done some tasks after clocking in before her shift — though not always 15 minutes before — it ordered the restaurant to pay Rupps $96.59.

For more information see:

• Various Employees and Vito’s Pizzeria Food Production ltd., Re, 2018 CarswellNB 272 (N.B. Lab. and Emp. Bd.).

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