Lluc Cerda on restaurant servers’ rights to minimum wage

The Ontario restrictions regarding the closure of restaurants have resulted in a lack of alcohol sales, and many servers across the province have not had access to tips and in fact state, they are making less than the minimum wage.

Lluc Cerda, an employment lawyer and Associate at Samfiru Tumarkin LLP spoke with the Toronto Star’s Rosa Saba on what restaurant servers are legally entitled to.

“If the rationale behind the liquor server minimum wage disappears, then by an act of law you now have to pay the regular minimum wage,” Cerda states. According to the  Employment Standards Act in Ontario, the liquor server minimum wage is $2 less than the regular minimum wage. Cerda goes on to explain that with a lack of tips, however, servers could be demanding the regular minimum wage right now. “If tips have dried up while dining is prohibited, the employee may no longer be considered to be regularly receiving tips”, Cerda states.

As some restaurants opt to include the delivery of alcohol, the situation has become more difficult to manage. “This liquor licence minimum wage is not adapted at all for the current restaurant environment. Both requirements — the regular serving of alcohol and the regular tips — have to be fulfilled for the employee to qualify for the server minimum wage”, Cerda explains.

While the Ministry of Labour is open to receiving complaints from employees regarding a lack of proper compensation, not all employees are comfortable filing a complaint.  “The most vulnerable of workers are generally the ones that are being paid the minimum wage,” Cerda says. “I think the ministry does have to take the lead and provide some clear guidelines on the application of this minimum wage … so that people know what their rights are.”

Ultimately, Cerda believes employers may be unaware of their obligations and required to increase server wages.