The Vice-Chair of the Nova Scotia Labour Board, Lorraine Lafferty, recently considered this issue in Webb v. Spry Bay Campground & Cabins 2015 NSLB 26 and found that where there was proof of time outside of normal working hours spent closing up shop, then yes, the employee must be paid.
The Employee worked as a cook/clerk in a convenience store, which was part of a campground and cabin operation. Her job consisted primarily of customer service in the store, food preparation, and clean-up on closing (washing dishes, sweeping, counting cash, balancing receipts, locking up, etc.). The store was open from 10:00 a.m. to 10:00 p.m. The Employee regularly worked the afternoon shift which meant that she was required to close the store at night. She claimed that she left the store from 11 minutes to 43 minutes after closing, spending that time completing the tasks required of her on closing. She testified that when she was hired, she was told that she would not be paid for work in the store after the store closed. However, she complained that she could not always complete the tasks required for closing prior to the end of her shift and claimed that she should be paid for the duties performed after the store closed.
The Employer, said that the Employee should have been able to complete her assigned duties during work hours and that the tasks remaining after closing should have taken 10 minutes or less. The Employer said that if it had known the Employee was staying late, it would have made adjustments to correct the situation or would have provided time off in lieu to offset the extra time spent working after the store closed.
What did the Board say?
The Board said that when an employee is paid minimum wage, which the Employee in this case was, the Minimum Wage order of the Nova Scotia Labour Standards Code (“the Code”) entitles the employee to be paid one-half hour for every 15 to 30 minutes worked and paid one hour for every 30 minutes to 60 minutes worked.
The Board concluded that the Employee was sometimes present at the workplace after her regularly scheduled hours ended and that she was doing work-related tasks during those times. Although there was no time clock to punch, the last task to be done by the employee before locking up was preparation of a cash register report that has a “cash out” time that could be relied upon. Using those reports, the Employee established that she had worked beyond her scheduled hours between 15 minutes and 30 minutes after closing on 11 occasions and between 30 minutes and 60 minutes on two occasions.
…The Respondents say they were unaware the Complainant was staying late and if they had known they would have taken steps to make suitable adjustments such as providing time off commensurate with extra time worked. The Board agrees an employer has the right to know if an employee is working more hours than contracted for so that costs can be controlled. In this case the Respondents ought to have known from the Z reports when the Complainant was working late. There was no reliable evidence that the Respondents gave the Complainant time off in lieu for her additional time worked.
Based on a review of the Z reports, the Board finds the Complainant is entitled to wages for 7.5 hours of unpaid work.
What does this mean for employers?
This Board decision is a “wake-up call” for Nova Scotia employers who have minimum wage employees performing close up and opening up duties. The potential for liability can be significant. First and foremost – employers should be aware of what employees are doing in terms of time and duties during these periods of time and have a clear system of tracking time in place, particularly where the employee is largely unsupervised. Time to dust off your policies if you don’t already have a policy dealing with this specific issue. Your policy should clearly outline the duties of employees and whether the employer will provide time off in lieu for any time required to be worked in excess of the regularly scheduled shift.
This decision is just not about unpaid hours of work. It also deals with dismissal as a discriminatory act under the Code. As such, it is worth reading by clicking on the link to the decision provided above.