After being fired from her serving job on February 10 of this year, Cayley Pozza took action by posting a video on social media denouncing her employers’ illegal tip-out processes. What this video revealed is one of the many ways that restaurant owners punish servers for speaking out against illegal practices. On a broader scale, it demonstrates that Bill 148 amendments to protect workers will have a muted impact without adequate protection against reprisal.
For servers, the difficulty in reporting law-breaking bosses is twofold:
- Reporting processes make it impossible for complaints to be made anonymously.
- Tipping structures in restaurants allow for punishment to take place that is well within the legal boundaries of the Employment Standards Act (ESA)
Step 1 of our current ESA complaint system demands that an employee must directly confront the situation with their boss. Exceptions to this rule do exist, but fear of punishment isn’t listed as one of them. Step 2 of the process is to file a complaint. The complaint cannot be anonymous and it cannot be made from anyone who is not a current employee. This means that there is no way for a server to access or inform caseworkers of illegal practices without her boss knowing.
There are a myriad of ways that restaurant owners are able to manipulate tips earned by servers on any given shift without directly taking the money away. While the Protecting Employees Tips Act addresses the issue of owners directed stealing tips, no regulations exist to prevent any owners from manipulating the amount of tips earned. The following are just some of the ways that servers tip-earning can be manipulated to punish servers:
- Number of Tables: At the beginning of a shift servers are given a section of tables to serve. More tables means more bills, which means more tips. Owners allocate the amount of tables as a means of rewarding favoured employees and punishing those deemed to be problems.
- Location of Section: The same principles above apply to section location. The more popular sections go to the favoured staff. Those that speak out can quickly find themselves scheduled on the patio in a thunderstorm.
- Schedule: Time of day and start times all have a huge impact on the amount of money servers can earn. A Friday night closing shift at a pub can see as high as $400.00 earned, where a Monday afternoon shift would be lucky to see $40.00. This means owners can legally cut earnings by 90% and servers have no legal recourse.
- Seating: Servers who are favoured will see a higher volume of guests seated in their sections or be scheduled to work large parties, garnering higher tips.
- Cuts/OTLE: Schedules for servers only include a start time. The end time is entirely to the discretion of management. Servers who are deemed as a problem will often be first cut during a lull and unable to make tips because their section is taken over by others, while they are made to perform ‘side duties’. The new ESA changes will give some scheduling protections for workers, but these may be largely evaded by corporate chains such as Sircorp through their practice of instituting Option To Leave Early, known as OTLE. In these restaurants, servers are forced to sign a document upon hiring that allows management to give them the “option” of leaving early. All of the above potential punishments exist if the server doesn’t accept.
While Bill 148 has made significant progress towards legal protections for workers, servers remain largely unable to access these rights without the very real fear of punishment from bosses.