On June 26, 2020 the Worker Solidarity Network (WSN) followed up on an anonymous tip about the Brew Creek Centre (BCC) in Whistler B.C. – a venue for special functions such as weddings, retreats and corporate gatherings. From this tip, our team learned that the BCC had a practice of informing its customers that “Prices do not include 18% gratuity and 5% GST” at the bottom of their Menu(s).
One employee of the BCC was working for an expensive function that wrapped up with a large bill that included a charge at the bottom labelled ‘GRATUITY’, for thousands of dollars. This employee who worked the function did not personally receive tips, and suspected that others employed to run these functions (including the hard working front-of-house, housekeeping, kitchen and catering staff) also hadn’t seen a cent of those gratuities.
In the public interest of future customers, and those employed in the B.C. service industry broadly, the Network sought to understand where these auto-gratuities were going.
According to the BCC website, the venue hosts similar events on an ongoing basis, and the WSN is not aware if gratuity distribution differs between these big events.
“As someone who has worked in the food service industry and appreciates the skill and labour required, when I pay for a gratuity at a function I assume that this tip goes toward those who directly pour my drinks, serve, and prepare the food. I think that this is the impression and reasonable expectation that customers anywhere have. If I thought my large automatically-added tip was going elsewhere or was unaware of its destination, I would be less likely to book my party at that venue.” – Anna Gerrard, a member of the WSN.
On July 16, 2020 the WSN submitted a formal complaint with the Employment Standards Branch seeking to rectify the situation, requesting a workplace-wide audit of the Brew Creek Centre to ensure that these funds were going to workers and not illegally toward ‘the house’.
The Employment Standards Act states the following with respect to the rights of an employee in B.C. and the safeguarding of their tip income:
- An employer must not make a deduction or withhold gratuities from an employee to cover ‘house costs’ or business costs (wages, broken equipment), and if they do so, the amount withheld is a debt due that may be collected by the Employment Standards Branch in the same way that missing wages are. An employer can however withhold it if it’s to later redistribute it to those participating in an employer-run tip pool.
- An employer (or a director or shareholder of an employer) may not share in the gratuities redistributed, unless:
The employer ‘regularly’ performs to a ‘substantial degree’ the same work performed by some of the employees in the tip pool, or “employees of other employers in the same industry who commonly receive or share in gratuities.”
In the WSN’s solidarity program, it’s common for employees to have experienced retaliation as a result of addressing their rights at work, whether that’s through harassment and intimidation, termination, or being ‘blacklisted’, while losing a valuable reference. Thus, it is no surprise to us that workers who have experienced this (or know someone who has experienced this) are understandably apprehensive about sharing their identities in a complaint, regardless of who their employer is. This is especially true with those without a union, and for those who are made vulnerable by a lived experience of systemic discriminations, stigmas and oppressions:
“I do not wish to escalate this to a non-anonymous complaint as I am certain that I’ll be facing some sort of retaliation from the BCC and could really easily be blacklisted from future employment opportunities in the very small bubble that is Whistler.” – An anonymous worker at the BCC
The WSN has supported many workers in situations where the Branch will work to restore an individual worker’s stolen wages, but not all employees at a workplace, through a ‘general audit’ process. Often, the audit doesn’t pursue findings for those without a named-individual’s complaint attached, and there’s nothing more we can do, despite our evidence and the personal accounts of workers. This is problematic because more often than not, workers who contact the WSN admirably seek justice for their entire team and not only for themselves. This also contributes to a culture of capitalist individualism and seeks to counteract the incredible power that workers have when acting in solidarity with one another, regardless of how it impacts their own situation.
Because the complaint had been made by a third party (the Worker Solidarity Network), for employee anonymity and for the reasons stated earlier, the current enforcement system means that we were not eligible to receive updates on the file, view any written determination if there was to be one, or to have the opportunity to respond to contrary statements. We did however submit our evidence in full on April 21st, once we learned that it was being investigated, explaining the situation as clearly as possible.
We were informed of the following by an Investigator assigned to the complaint file:
- They’d spoken to the General Manager, who’d said that Covid-19 closures meant that within this past year they were barely operational aside from one catering event in August. They also claimed that tips were being distributed to managers, catering staff and their kitchen.
- The investigator requested records about gratuity redistribution from them dating back one year from April 27, 2021. They gave the employer a deadline of April 15th to provide these records.
The WSN believes that it is in the public interest that workers understand what the legislation-enforcing complaint process can and will not do, and that the public ensures that the Employment Standards Branch weighs the interest of workers and employers equally, ensuring the integrity of the law is upheld. It is equally important to ensure that all claims can be verified.
On May 10th, we still hadn’t heard anything and so we followed up. We then heard back on May 13th, saying that documents were provided by the employer on May 7th but that the investigator was particularly busy but planning to get to them the following week.
On June 9th, we sought additional clarifications regarding gratuity charges that were written into the bill at a set % rate:
“These “18% gratuity” automatic service charges are not collected in relation to an employee’s production or efficiency but rather determined by intangible aspects of the service, would these charges, if paid out, be considered when determining employee entitlements such as vacation pay? (See: Pfeffer, November 13, 2002, Employment Standard Tribunal) I also wish to note that the unspecific gratuity service charges indicated on the menu would be reasonably assumed to be redistributed in a way which does not exclude kitchen employees, given the food-service primary nature of the business. Based on this, we wonder how one fairly determines to whom this auto-gratuity should be distributed to, and who should remain excluded.” – WSN Solidarity Steward
When we heard back, and were reminded that unless the complainant(s) were willing to disclose their names, we would not be provided with any opportunity to respond to the audit’s findings.
We were told that the investigator was speaking to the employer about changing their ‘catering surcharge’ moving forward so that it complies with the Act, and that they were discussing paying the employees the income generated under this charge over the past year…which only covered any events during covid closures.
On July 28, 2021 we were informed by the Branch Investigator that:
- Employees were to be paid these withheld gratuities for only 1 year back, when there was no business due to the pandemic (April 27, 2020 – April 26, 2021).
- They held a team meeting at work about changes to tip pool structures moving forward.
“It is absolutely unacceptable for the Inspector to assume that a small slap on the wrist she is suggesting will make up for the loss of wage that the employees of the BCC have suffered in the last few years – this is tens of thousands of dollars in gratuities that were never rightly shared.” – an anonymous worker, April 2021
It is important that the public ensure that gratuity protection rights are upheld, and that procedural nuances do not forfeit the basic rights of workers with such a high percentage of the province’s workers reliant on this form of income. Employers that violate employment standards law must be held to account, whether that’s by the system the labour movement fought to establish, or, by the collective power of the current and ongoing movement.
On August 9, 2021, we sought answers :
“With our request for investigation submitted mid-July 2020, the employee(s) were unaware of how long they’d be required to wait due to extended wait periods with pandemic backlog, and their motivations for the complaint remain focused on the large volume of gratuities charged in the years preceding a decline of business due to pandemic closures. Employees without union protection or in precarious low wage sectors naturally have valid concerns about employer retaliation, preventing many from pursuing justice through the process of filing a complaint. I would like to know if the anonymity of this complaint is what effectively led to a determination which failed to address the employee’s concerns, preventing them from accessing investigation timelines that may have otherwise led to a very different outcome for the employee(s).” – WSN Solidarity Steward
We were then reminded that yes, because this was an anonymous complaint, that the Investigator had no discretion to ask the employer for records or funds beyond the date in which it was picked up and investigated (9 month wait period from complaint to investigation). The only option that seemed to present itself was for the complaint to be filed again non-anonymously, which was not a realistic or assured path toward job security for the employee.
Justice Delayed is Justice Denied!
Section 80 of the Act explains the following:
The amount of wages an employer may be required by a determination to pay an employee is limited to the amount that became payable in the period beginning:
- In the case of a complaint, 12 months before the earlier of the date of the complaint or the termination of the employment, and
- In any other case, 12 months before the director first told the employer of the investigation that resulted in the determination,
And in our case, because it was an anonymous request for a workplace-wide investigation, we were the “in any other case”, and not (a) where it would go back a year from the complaint’s submission.
The WSN reached out to the General Manager on August 30th to offer them the opportunity to remedy the situation, following the Branch’s own confirmation that their current policy was in fact in violation of the Act. Their response was the following:
“…You may not know that we have already been working closely with Employment Standards to ensure compliance around our Events Fee and Catering Surcharge practices and have settled all outstanding claims through the Employment Standards process so there is nothing left to settle at this time.” – General Manager of The Brew Creek Centre, Sept 21st.
The Worker Solidarity Network believes in the importance of grassroots labour organizing, and the ongoing organizing that workers must do to defend their rights under capitalism. Our rights only exist because they were fought for, and even now, we must act to close the enforcement gap and put faith in the power of our fellow workers.
Informing our membership about gratuity rights contraventions is B.C. is a matter of public interest: Many workers rely on their tips for income and these experiences are common for those we serve. Many aren’t aware of their rights under the Act. Together, we can protect one another, and change the story.
That’s why, in solidarity with the workers of the BCC, the Worker Solidarity Network is calling on it’s community and all of its members to join us calling for a restoration and redistribution of all profit collected under a 18% ‘gratuity’ charge to the BCC’s current and former employees, between the dates of May 2019 to July 2020.
“Hopefully this approach could not only reach the owner of the BCC directly and hopefully appeal to his generosity but it would shed some light on their practice and inform a lot of their current and past employees still unaware of the situation.” – a former employee of the BCC
Were you a guest or patron of the Brew Creek Centre between 2010 and 2020? Did you know that your gratuity charge was being allocated in a way that did not distribute the gratuity to certain staff members? Tweet or tell us your story; @WorkerSol_BC or info@workersolidarity.ca.
If you have any questions, if you would like to share your story, or for media requests, please contact us.
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