TAPS’ Employment Standards Legal Advocacy Project (ESLAP) is part of a community movement to empower workers by informing them of their rights and helping them take action on issues like unpaid wages. We advocate for non-unionized workers in negotiation with employers, and guide workers through the Employment Standards Branch complaint process. We use the Employment Standards Act, legislation that outlines employers’ responsibilities and workers’ basic entitlements to hours and pay.
Wage theft happens whenever an employer fails to pay an employee for their work, makes illegal deductions, or requires an employee to do unpaid work. Sometimes employers deliberately take advantage of workers, and sometimes employers are not aware of their legal obligations.
Like many workers’ rights issues, clear up-front communication is the first step in dealing with potential wage theft. This means having regular conversations with your employer about when you work, how this time will be recorded, and when you will be paid for it. Another strategy is to speak with your co-workers about pay issues and approach your employer together. You can also take action through the Employment Standards Branch yourself, or with the help of a legal advocate at TAPS.
Two of the most glaring types of wage theft are outright failure to pay employees, and failure to pay minimum wage. For example, in commissioned sales work an employer is obligated to pay workers at least the equivalent of minimum wage for every hour worked, regardless of sales made. The Employment Standards Act says employers must issue pay cheques at least every 16 days (Section 17), and pay workers a minimum $10.25 an hour (Section 15), or $9.00 for workers who serve liquor.
When an employer fails to pay an employee or fails to pay minimum wage, this wage theft can have a severe impact on a worker who needs to pay rent and bills and take care of their family. Besides the financial pressure, the power dynamic that often exists between employers and workers can mean that a worker is uncomfortable asking for what they are owed. Sometimes employers will discourage workers from speaking up by portraying their employment arrangement as a private matter rather than a legal agreement that must meet basic public standards for hours, pay, and working conditions.
Speaking up about issues like wage theft and having community conversations about workers’ rights as a public issue rather than a private relationship spreads awareness about employment standards and means that fewer people will be taken advantage of by their bosses. Communicating with your employer and accessing the protections available through the Employment Standards complaint process are your best strategies for getting the pay you are owed and building a workplace culture where you are respected and employment standards are met.
Wage theft is not always so obvious. Employers sometimes benefit at the cost of their employees’ welfare by coercing them into off-the-clock work. If you have to come in early, stay late, or work without breaks and are not getting paid for this time, you are dealing with wage theft. This might be a situation where you could talk to your employer about adjusting your pay and record of hours so that you are paid for your actual work and any back wages owed, or it may be time to get outside help.
Unpaid overtime is a widespread area of wage theft. If an employer requires you to work more than 8 hours in a shift or more than 40 hours in a week, they must pay you overtime. Section 40 of the Act requires employers to pay time and a half for any work beyond these hours, and double time after 12 hours in a shift, not including breaks. You may not be owed overtime if you have a written agreement to average your work hours. If you’re not sure, you can call an ESLAP advocate for advice.
Charging employees for business costs and making illegal deductions is another way that employers download their expenses onto workers. Section 21 of the Act clearly states that employers cannot charge you for any broken or damaged equipment, supplies, or other business costs. Especially in hospitality and retail businesses, employers will sometimes withhold workers’ wages if a customer is not satisfied or refuses to pay. Other employers might require workers to pay for required uniforms, or safety gear or cleaning supplies necessary to their work. Withholding pay for errors a worker makes is also illegal wage theft; for example, charging workers for errors made using equipment like a till or operating machinery. The only deductions allowed under the Act for non-unionized workers are for Employment Insurance, Canada Pension Plan contributions, taxes, and any funds agreed to in writing, such as an employer-sponsored savings plan.
Taking care of yourself on the job and getting your basic right to be paid for your time means watching for these types of wage theft. Make a habit of keeping your own record of hours and compare this to your pay stubs. Check in regularly with your supervisor or employer and co-workers about hours and pay. Good communication can help resolve wage theft issues before they become a drain on your income and work relationships.
If you you’re losing pay and respect to wage theft, take action! Get help—talk to someone you trust, or call an ESLAP advocate or the Employment Standards Branch. It may be time to start the Employment Standards complaint process, which includes sending a “Self-Help Kit” outlining what you’re owed to your employer, then filing a complaint with Employment Standards Online. Check out tapsbc.ca for the June-July 2013 Taproot with our guide to the Employment Standards complaint process.
Contact an Employment Standards Legal Advocacy Project representative at TAPS at 250.361.3521 or firstname.lastname@example.org for advice and advocacy or for help through the formal complaint process. The Employment Standards Branch can also answer your questions at 1.800.661.3316. You have up to six months after an incident or the end of a job to file a complaint.