According to Restaurants Canada, the Canadian food service industry employs over 1.2 million people. With so many people involved in this industry, whether as franchise owners, professional chefs or part-time servers, it is important to be aware of the workplace rights and obligations that apply. The food services industry is in many ways unique, facing safety and cost challenges that many other sectors do not. With that in mind, we set out to provide an overview of some key employment rights and obligations:
In Ontario, all restaurant staff must be paid in accordance with at least the applicable minimum wage. This rate can vary based on both the employee’s age and/or position within the operation.
Ontario specifies a number of different minimum wage rates. If you work as a “Liquor Server”, the current hourly minimum wage rate is $12.20. In order to qualify as a “Liquor Server” an employee must, as a regular part of their employment, serve liquor directly to customers, guests, members or patrons in a licensed premises (as defined under the Liquor Licence Act) and also receive tips as part of their work.
If the restaurant employs students (who are younger than 18 years old and work less than 28 hours per week during school, or work during breaks from school) they must receive at least $13.15 per hour. Beyond that, all other restaurant staff are entitled to be paid in accordance with the general minimum wage rate of $14.00. At present, all minimum wage rates are set to increase as of January 1, 2019 (though this may not occur as planned in light of the electoral platform of Ontario’s new provincial government). Accordingly, it is important for restaurant owners and staff to monitor the situation and ensure compliance.
Staff Tipping & Gratuities
Tips are a common feature of many restaurants, and an important component of staff compensation. The Employment Standards Act defines a “tip or other gratuity” as a payment voluntarily left by a customer for an employee, or a service charge imposed by the employer.
Employers retain the right to decide whether tipping is permissible at their place of business. If a restaurant decides to disallow tipping, it should take proactive steps to make clear to all clientele that tips and gratuities will not be accepted by staff.
Beyond that, employers should establish a system for tracking tips, including a policy on how tips will be handled (which should be posted in the workplace) and how a tip pool will function (both in terms of how re-distribution of tips will be calculated and timing of payments). While employers are prohibited from deducting tips to cover costs such as spillage, breakage or loss, they can retain a portion of credit card processing fees as a result of tips and gratuities paid by this method. In particular, employers can deduct the greater of 1.5% or the percentage charged by the processing company.
Employees are also strongly encouraged to track the tip amounts that they receive, including any amounts they receive through a tip pool.
Health and Safety of Staff and Customers
Whether you operate a restaurant, bar, nightclub, diner or fast food eatery, staff and customer safety is paramount. Food service operations face a number of unique challenges in this regard due to the high volume of people involved, the presence of cooking equipment, hot beverages and the potential for slips, trips and falls.
As such, it is important to be familiar with the health and safety requirements set out in the Occupational Health and Safety Act and its associated regulations. As part of this process, employers should look to foster a safe work environment. Some steps that may be taken in this regard include provision of training for new staff with regard to first aid, and site-specific hazards, including WHMIS. It is also helpful to reinforce training through regular pre-shift safety talks, and recurring staff meetings.
Beyond that, employers and workers can take steps to minimize the risk of workplace injury by establishing protocols for the immediate clean up of spills, providing, and properly using, personal protective equipment, and encouraging micro-breaks during a shift to minimize the risk of musculoskeletal injuries. Both staff and owners should also be aware of the requirement that the workplace be free of both violence and harassment, and ensure that a clear policy and process are in place to quickly deal with any issues raised in this regard.
Staff Uniforms/Dress Codes
Many restaurants implement a staff dress code to promote neatness and professionalism, to reinforce their brand, and to make obvious to patrons who is available to serve them.
That said, in implementing a dress code, it is important to ensure that its requirements are lawful, and in particular, it complies with the requirements of the Occupational Health and Safety Act and the Human Rights Code. We encourage all employers to work with an employment lawyer in drafting and implementing an enforceable dress code, however, some issues to consider include:
- ensuring that the dress code does not force staff to wear sexualized, revealing or gender-stereotypical clothing;
- ensuring that the dress code does not place grooming or appearance rules on female staff employees that are ore onerous than for their male counterparts;
- ensuring that the dress code allows for a wide range of hairstyles, unless there is a legitimate concern with regard to food preparation and safety; and
- ensuring that the dress code does not require staff to wear high-heeled shoes.
If you are a restaurant owner, it is important to be aware of, and to ensure compliance with, the Accessibility for Ontarians with Disabilities Act, 2005. The Act’s requirements vary depending on the size of your operation, with larger businesses required to meet more onerous obligations in this regard.
Generally speaking, however, the Act requires businesses that provide goods and/or services to do so in a way that makes them accessible to all Ontarians. Some steps that employers need to take in meeting this requirement include: training staff to serve customers of all abilities; welcoming service animals and support persons to your business; and providing accessible ways for people to provide feedback. In addition, many businesses, depending on their size, will be required to file an Accessibility Compliance Report.
- Severance Pay Calculator
- Ontario Minimum Wage Rates
- Understanding Tips and Gratuities
- Ministry of Labour Guide to the Restaurant Sector
- Human Rights Commission: Dress Code Checklist
- Accessibility Rules for Ontario Businesses
If you are a restaurant owner, franchisee, or restaurant employee, and have questions about your workplace rights and obligations, please contact one of your experienced employment lawyers and would be happy to assist.
*This article provides only general information and should not be relied upon as specific legal advice*
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. 613-238-4430 or firstname.lastname@example.org