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
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