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What rights do retail employees have in Canada?

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An Apple employee hands out an iPhone 5 at an Apple Store in San Francisco, California, September 21, 2012. REUTERS/Noah Berger

Anyone who’s stood on the retail floor for eight hours knows it’s a tough gig. Between the near constant watchful eyes of managers and sometimes irrationally cranky customers, some days can add a little extra weight to your already sore feet. Compound that with bag checks every time you enter and leave – for break, for lunch, for the day – and you can kind of see why Apple employees are looking for a reprieve.

Last week, a California judge gave the official go-ahead for former Apple store employees to pursue a class action lawsuit against the Cupertino, California-based company, seeking compensation for the time they spend waiting for their bags to be searched at the end of their shifts.

Despite claims by managers that searches only take a few seconds, employees in the lawsuit, which was initially filed in 2013, say those bag checks can last as long as 20 minutes. While it’s common practice in retail to search bags before an employee leaves to ensure they haven’t accidentally (or intentionally) pocketed merchandise or cash – the proliferation of Apple products puts the bag check in slightly more challenging territory.

According to court documents, managers or security guards must remove any Apple products from the employees bag and crosscheck them with the serial numbers of their personal Apple devices stored on the company’s system. Should a sketchy situation arise, like say the employee doesn’t have that particular product registered, Apple will hold onto the product until it can be verified.

While the suit got the go-ahead stateside, Natalie MacDonald co-founding partner of Rudner MacDonald LLP and author of Extraordinary Damages in Canadian Employment Law told Yahoo Canada she’s not sure it’d play out in the employees’ favour if the same suit were to be launched north of the border.

“In this particular case, in my view, the screenings should be more aligned with the duties and responsibilities of the job and the employer should not have to compensate the employees for this,” she says.

She points out that in Canada, if these employees had clearly written employment contracts, and the employer had specific policies referring to the requirement to undergo the screening process as part of the duties and responsibilities of the employee, the employer would not owe overtime pay to them. 

“Obviously, the issue here is compensation for what the employees consider to be overtime,” says MacDonald. “ Although it varies across the provinces, in Canada, under Employment Standards legislation, if employees work over a set amount of hours, they are typically compensated by overtime pay consisting of time and a half.”

In Ontario, for instance, after 44 hours in a work week employees are entitled to time and a half for subsequent hours.

“In certain cases, if both the employer and employee agree, the employer may average the overtime over short period of time,” she adds. “This is perfectly acceptable, as long as the employer has the employee’s consent, which should be provided in writing.”

But the issue of showing up early and staying a bit late aren’t unique to Apple. It’s a common practice in the service industry where employers can’t have an unstaffed floor so they ask employees to show up early in order to ensure each shift is there to take the other shift’s space the moment they’re done.

“The Apple situation is more irksome because it’s at the end of people’s shifts, when they just want to go home,” says Peter Harris, chief editor at Workopolis. “You can see how that gets under people’s skin – they’re off the clock, they’re not getting paid anymore, and yet they have to wait around at the employer’s request.”

Dr. Kendra Coulter, an associate professor at Brock University’s Centre for Labour Studies, argues employee rights in the retail sphere in Canada aren’t as strong as they could be.

“Noteworthy is what little is enshrined in law, and what is not mentioned at all – most people believe they have greater protection and more rights than what actually exists in the current laws,” she says.

She points out that while it’s common practice to have employees show up early to ensure the floor isn’t void of staff, the coming in early, staying late to complete tasks or check bags adds up.

“Some employers may claim that staff staying late is an unexpected and atypical occurrence, but it happens regularly – anyone who works on the front lines of retail will tell you that,” adds Coulter. “It is seen by some workers as a subtle form of wage theft, but it is widespread and normalized and often reluctantly tolerated as one of the frustrations of working in a sector like retail.”

In May, the government of Ontario started public consultations to update its 20-year-old Labour Relations Act and 15-year-old Employment Standards Act.

“Clear language could be enshrined on a range of scheduling issues, this matter included,” adds Coulter. “This could be done across Canada, wherever needed, to protect people regardless of where they work.”

However, it’s not only about what laws are in place but whether they’re enforced or not and, perhaps more importantly, to what extent.

“There are workers owed thousands in back wages who are having trouble, so labour ministries may see smaller infractions as less of a priority,” she says adding that such losses are particularly troubling since retail workers are usually paid minimum wage. “Being paid fairly for time worked – it seems like such a simple and fundamental concept – unfortunately, for too many people, it’s not yet a reality.”