Arnold is 16 years old. He is a full time student in high school, but he wanted to earn some money in the last Christmas break. He applied to different restaurants, hotels and stores to get a job. Finally, he was hired as a server in a Mediterranean restaurant during his December break from school. This restaurant does not serve alcohol.
Initially, his boss said to him that the wage for his job would be $8.50 per hour. He could also earn tips, but they would be part of his minimum wage amount.
He worked six hours per day and he usually took thirty minutes for his lunch break. One week after Arnold started working, the manager said to him that the student employees were only allowed to take fifteen minutes for lunch break.
Although Arnold felt that his job conditions were not fair, he continued working on the weekends after Christmas break. However, he has not received his wages from April and May.
Arnold does not know if there is a law that regulates this issue. He wants to know if the labor conditions in his job are fair, and if he will be able to recover his wages for the months of April and May.
The Employment Standards Act (ESA) sets out the rights and responsibilities of both employees and employers in Ontario workplaces.
Young workers have the same rights as other employees in most Ontario workplaces under the ESA. It is important to know that the minimum age for working in Ontario is 14 years in most types of workplaces.
Regulations specify higher minimum ages for certain types of work and workplaces. For example, working in the kitchen at a restaurant requires you to be at least fifteen years old. You also have to be at least fifteen to work in laundries, shipping and receiving areas in grocery stores, automotive service garages, produce and meat preparation areas and warehouses.
Was Arnold receiving a legal wage in his job?
Minimum wage is the lowest hourly wage an employer can pay employees, whether they are full-time or part-time.
No matter how they are paid, employers must pay most employees, including young workers, at least the minimum wage. Tips or gratuities are not considered wages and will not be considered in determining whether an employee is receiving at least minimum wage. This means that Arnold’s boss was breaking the law if he deducted Arnold’s tips from his minimum wage.
The minimum wage rate for a certain job can depend on what kind of work an employee is doing and how old the employee is. In Ontario, there is a general minimum wage rate that applies to most employees.
There is also a student minimum wagerate that applies to many students under the age of 18.
Students must be paid at least the student minimum wage if they are under 18 and they:
- work no more than 28 hours a week when school is in session, or
- work during a school holiday (for example, March break, Christmas break, summer holidays)
Students who work more than 28 hours a week when school is in session are entitled to the general minimum wage.
General minimum wage rate is $10.25 per hour.
Student minimum wage rate is $9.60 per hour. This is Arnold´s situation and this is the minimum amount he should be paid for each hour he works at the restaurant.
There are some exceptions to the minimum wage requirements. For example:
- If you are participating in a high school “co-op” or work experience program authorized by the school board that operates your school
- If you are a college or university student performing work through your school program
- If you are training for certain occupations such as architecture, law, professional engineering, medicine, optometry
- If you are a student employed to instruct or supervise children and a person employed as a student at a camp for children (like a camp counselor)
How much time can Arnold take for lunch?
Most employees, including young workers, may not work longer than five hours in a row without getting a 30-minute eating period. If Arnold and his employer agree, the 30-minute eating period may be taken as two breaks within each five-consecutive-hour work period. Meal breaks are usually unpaid.
If Arnold is working a shift that is less than five hours long, he does not have to receive any lunch break. So, for example, if he works a “split” from 11 am until 3 pm and then from 5 pm until 8 pm, he does not have to receive a lunch break.
How can Arnold get his pay from April and May?
Since Arnold’s boss violated the Employment Standards Act, Arnold can contact the Ministry of Labour to file a complaint. Arnold can start this process by contacting the Employment Standards Information Centre at 416-326-7160 or 1-800-531-5551. They will be able to give him information about the Employment Standards Act and filing a complaint. In the complaint process, his complaint will be investigated, and his employer can be ordered to pay him wages. Arnold should keep evidence that he worked during this time and that his employer didn’t pay him. An example of evidence would be a copy of a time sheet where he signed in and out, or an email giving him his work schedule for the week.
If Arnold decides to file a complaint, he must do this within 6 months of the date he was supposed to be paid. So, for pay he should have received on March 14, he must file his complaint by September 14. Sometimes, this 6 month period can be extended if an employer violated the act multiple times, but at least one of those times happened in the past six months.
For more information about the rights and rules on young workers, check out this website from the Ministry of Labour.
This post was written by PLE Team volunteers Lina Maria Sanchez (a Columbian lawyer who has recently come to Canada) and UofT law student Leora Jackson. Legal info was reviewed by JFCY.