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THE QUESTION
I work in retail sales and get a 30-minute unpaid break per shift. I usually go out for lunch or take a walk outside for fresh air. But for the last few weeks my manager has asked me to stay in the staff room for my break in case the store gets busy and she needs my help. If I didn’t pack lunch, she’ll let me run out to grab something, but she says I have to come back and eat it in the lunchroom. I usually get another short break after the rush is gone, to make up for the time, but I think it’s unfair that I’m forced to stay there and be “on call” when it’s my time off. Is this allowed?
THE FIRST ANSWER
Rahul Soni, employment lawyer, Soni Law Firm, Toronto
No, your breaks are your time and your employer cannot control how you spend them. Rules vary between provinces but in Ontario the Employment Standards Act requires employers to provide employees with an unpaid 30-minute meal break after no more than five consecutive hours of work. This break must be uninterrupted and entirely free from work obligations.
Your manager cannot require you to remain in the staff room during your break “in case the store gets busy.” The law is clear that an employee must be fully relieved of work duties during the break period. Being on standby or “on call” undermines the quintessential purpose of the break, which is to be momentarily free from all work. Similarly, your employer’s offer of a second short break after the busy period does not make up for failing to provide a proper, uninterrupted break as required under the law. As a result, you may be able to recover monetary compensation for those uninterrupted 30-minute breaks that you were entitled to have but never received.
You are correct to feel that it is unfair for your employer to force you to stay onsite or on call during your unpaid break. You may want to speak with your employer about how you are entitled to continuous, uninterrupted breaks free of any work obligations. However, if your employer still fails to provide you with your lawfully entitled breaks, you should consult with an employment lawyer or your provincial ministry of labour to safeguard your rights.
THE SECOND ANSWER
Joshua Williams, senior associate, MD Law Group, Calgary
Employment standards codes and acts differ between provinces. In Alberta, the Employment Standards Code (the “Code”) is clear on the rules governing break periods.
Generally, if you work a shift of five hours or less, you are not entitled to any break. So, if your employer gives you a 30-minute unpaid break in these circumstances and dictates that you remain in the staff room, technically, they have not done anything wrong.
However, if you work a shift of more than five hours, you are entitled to at least one 30-minute break (paid or unpaid). If you work a shift of 10 hours or more, you are entitled to at least two 30-minute breaks. You and your employer may agree that you take your breaks in two periods of at least 15 minutes.
In certain situations, your employer is permitted to deviate from the general break requirements under the Code. For example, if an accident occurs at the workplace, urgent work is required or you are a member of a union and a different break arrangement has been agreed to in the collective agreement. It is doubtful that an influx of customers, leading to the store becoming very busy would be considered an emergency or urgent as this is the very nature of retail.
In your situation, assuming you work more than five hours during your shift, you are entitled to a 30-minute break and you should be allowed to do whatever you like during your break. This includes leaving your work premises. If your employer insists on having you remain on the premises during your break and limiting the activities you can engage in, then the break must be paid. Your 30-minute break can only be unpaid if you are completely free from all work duties and allowed to leave.
I would recommend that you have a discussion with your manager about this and notify her that your break time should be free from all work obligations. If she requires you to remain on the premises (on stand-by to help) during your break, then that cannot be considered as an unpaid break, but it should be a paid break.
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