When I began a serving job several years ago, my boss paid me less than minimum wage, explaining that my tips would more than make up for it. Shortly thereafter, I learned that my boss also had a policy of keeping all tips made by servers within the first month of employment. At the time, I was unfamiliar with applicable laws and regulations, and accepted this as normal.
While it is illegal for an employer to pay certain employees less than minimum wage, employees in Nova Scotia have no right to keep their tips.
Minimum wage
The Labour Standards Code, R.S., c. 246,[1] states that, with regard to non-unionized Nova Scotian employees to whom the Minimum Wage Order (General) applies,[2] employers are deemed to have agreed to pay at least the minimum wage.[3] An employer who pays an employee less than minimum wage violates the Order.[4]
Employers are currently required to pay inexperienced employees (those who have not been employed by their present employer for at least three calendar months[5]) at least $10.20 per hour, and experienced employees at least $10.70 per hour.[6]
When an employer violates a minimum wage order, an employee can complain to the Director of Labour Standards, who is obligated to inquire into the complaint, and has the discretion to attempt to settle the matter. Where a settlement cannot be effected, the Director must order the employer to pay the unpaid wages to the Labour Board by a set date.[7]
Gratuities
The Labour Standards Code defines “wages” to include salaries, commissions, and other compensation, but explicitly excludes gratuities.[8] Therefore, although an employee can complain to the Director about unpaid wages, they cannot complain about unpaid gratuities.
However, this can be changed by legislation or through collective bargaining. In 2015, Ontario passed the Protecting Employees’ Tips Act, which amended the Employment Standards Act, 2000 to prohibit employers from withholding gratuities from an employee, except temporarily in order to pool and distribute them among multiple employees.[9]
For service workers seeking to unionize, collective agreements can be negotiated to contain provisions regarding gratuities. For example, when employees of Just Us Coffee Roasters Co-op negotiated their current collective agreement, they included an article requiring that gratuities be pooled and distributed to bargaining unit members according to hours worked.
This blog post is written by our Articling Clerk Mary Burnet. For more information about employment law, please contact our team.
#WorkLawWednesday: every second Wednesday Pink Larkin answers general questions about employment and human rights law. This is not intended to be legal advice and should not be relied on as legal advice.
[1] Labour Standards Code, R.S., c. 246: http://nslegislature.ca/legc/statutes/labour%20standards%20code.pdf.
[2] Section 2 of the Minimum Wage Order (General) specifies that the Order applies to all employees and their employers with the exception of people employed to do domestic work in a private home by the householder, subject to further listed specifications, people under 16 years of age employed to do specified farm work, apprentices subject to the Apprenticeship and Trades Qualifications Act, people employed at non-profit playgrounds or summer camps, real estate and automobile salespeople, salespeople who work on commission outside the employer’s premises, but not those on set routes, insurance agents licenced under the Insurance Act, people working on fishing vessels, athletes, employees subject to special orders by the Governor in Council, people receiving training under government sponsored and approved plans, and employees and employers to whom the Minimum Wage Order (Logging and Forest Operations) or the Minimum Wage Order (Construction and Property Maintenance) applies: https://www.novascotia.ca/just/regulations/regs/lscmwgen.htm.
[3] Labour Standards Code, R.S., c. 246, s. 55.
[4] Minimum Wage Order (General), s. 5.
[5] Minimum Wage Order (General), s. 3(1).
[6] http://novascotia.ca/lae/employmentrights/minimumwage.asp.
[7] Labour Standards Code, R.S., c. 246, ss. 21, 56, 81.
[8] Labour Standards Code, R.S., c. 246, s. 2(u).
[9] Protecting Employees’ Tips Act, S.O. 2015, c.32: http://www.ontla.on.ca/bills/bills-files/41_Parliament/Session1/b012ra.pdf.