When Do You Rock The Boat?

[gumboot]

I have a question to throw to the masses for consideration. As an employee, when is the right time to rock the boat?

A friend of mine is in the following scenario:

They have recently started a new job, having been out of work for three years. They don't have a great employment record nor a good education.

As such, in the current economic climate they're not particularly employable, and it was a real battle to get a job. It's nothing amazing, basic retail in a small business with two local outlets.

As allowed by law, they are currently on a 90-day grace period where they can be dismissed at any time, without justification. After that time they enjoy the full protections of the (quite generous) employment law in this country.

The problem is, their employer appears to be intent on restricting some employee entitlements. Specifically, the rest and meal breaks that are provided in law.

The question is, at which point do you bring this up? If it goes to court the employee will win, without question. It's a blatant breach of employment law. However they will also probably lose their job, and will have to face the crushing task of trying to find another one in this inhospitable climate. I'm not clear where the law stands on dismissal during that 90 days. My understanding is you can't even legally raise an unfair dismissal complaint, thus if they were to raise the issue with the employer (a necessary step before the case can be brought to court) they would pretty much seal their fate.

However, if they remain silent until they've secured a permanent contract, the concern is the courts might question the employee's failure to raise the issue earlier.

Any ideas?

I'm inclined to advise them to wait it out, secure the permanent position, make themselves an invaluable member of the team, and then start causing trouble. Rely on the vulnerable position they're in and the fact they had no choice but to continue the job to sway a judge, if it makes it to court.

 

[MG1962]

I'm inclined to advise them to wait it out, secure the permanent position, make themselves an invaluable member of the team, and then start causing trouble. Rely on the vulnerable position they're in and the fact they had no choice but to continue the job to sway a judge, if it makes it to court.

This...........they can claim duress for the first three months

 

[Sword_Of_Truth]

Do the legal authorities have anonymous tip lines?

 

[gumboot]

Do the legal authorities have anonymous tip lines?

We have a tree-hugging "we all love each other" approach to employment disputes in this country. First the employee is expected to raise the issue on their own with their employer directly. Only if it's still not resolved can they seek non-binding mediation. And only if that still doesn't resolve it will the courts get involved.

In some industries there's good strong unions that can back the employee up, but retail isn't one of them.

 

[Gods Big Toe]

Before I suggest that your friend suck it up by thinking about the three years where he had no need for rest and meal breaks, could you elaborate on the details? What is the exact law and what is the boss actually doing? How is it affecting your friend other than knowing that the law says it should be otherwise? USA federal labor law does not require breaks or meals. State laws seem to be rather loose with weasel words like \"as practicable.\"

 

[theprestige]

Your friend should get paid and live large. If his skillset and/or conscience prevent him from doing so, too ******* bad for him. At least he's not dead yet, which is about all anybody is entitled to expect out of life anyway.

 

[Tsukasa Buddha]

Your friend should get paid and live large. If his skillset and/or conscience prevent him from doing so, too ******* bad for him. At least he's not dead yet, which is about all anybody is entitled to expect out of life anyway.

That... Has nothing to do with anything? Under NZ law they are entitled:

69ZD Entitlement to rest breaks and meal breaks
(1) An employee is entitled to, and the employer must provide the employee with, rest breaks and meal breaks in accordance with this Part.
(2) If an employee's work period is 2 hours or more but not more than 4 hours, the employee is entitled to one 10-minute paid rest break.
(3) If an employee's work period is more than 4 hours but not more than 6 hours, the employee is entitled to—
(a) one 10-minute paid rest break; and
(b) one 30-minute meal break.
(4) If an employee's work period is more than 6 hours but not more than 8 hours, the employee is entitled to—
(a) two 10-minute paid rest breaks; and
(b) one 30-minute meal break.
(5) If an employee's work period is more than 8 hours, the employee is entitled to—
(a) the same breaks as specified in subsection (4); and
(b) the breaks as specified in subsections (2) and (3) as if the employee's work period had started at the end of the eighth hour.

Linky.

That situation is horrible. I am not familiar with whether or not timing will matter to the courts, but I really think they should push the issue.

 

[Roger Ramjets]

Suck it up for the 90 days, but keep accurate records of any infringements. Once the position becomes permanent your friend can bring up the topic with their employer.

I suggest starting with a few gentle hints, and hope the management corrects their 'oversight'. If that doesn't work then a formal complaint can be laid, but your friend should realize that even a permanent position may not be worth much if the boss considers you a troublemaker.

I am currently employed in a small retail outlet, and my boss often expects me to work during meal breaks and designated rest periods. I also regularly work overtime without pay. Why do I put up with it? There are much worse jobs that I could be stuck in, and at 54 my career options are limited. Also I am able to leave the job behind when I go home.

Previously I ran my own business. The boss (me!) often expected me to work during lunch breaks and rest periods, and I regularly worked overtime without pay (OTOH I made sure that my employees always got their breaks). The main difference was that I still worried about the business when I got home. Compared to the stresses of owning and operating a business, my current job is a picnic.

 

[Ron_Tomkins]

When Do You Rock The Boat?

Now

 

[gumboot]

Before I suggest that your friend suck it up by thinking about the three years where he had no need for rest and meal breaks, could you elaborate on the details? What is the exact law and what is the boss actually doing? How is it affecting your friend other than knowing that the law says it should be otherwise? USA federal labor law does not require breaks or meals. State laws seem to be rather loose with weasel words like \"as practicable.\"

Tsukasa Buddha has cited the relevant legislation. Basically they're entitled to two paid 10 minute "rest" breaks (one morning, one afternoon) and a 30 minute unpaid "meal" break. The timing of the breaks can be adjusted to suit the work situation, but it's a legal right.

Instead they're getting a single fifteen minute meal break over the course of the day.

I think I need to do a bit more digging on the whole 90 day thing. It's a newly introduced thing for small businesses to try encourage them to take on employees, so I am not sure how much case law has been built up with regards to employees challenging their dismissals under the law.

For example, while in theory you can dismiss people essentially on a whim in those 90 days I am pretty sure there must be some consideration for things like human rights violations (dismissing someone because of their religion or sexual orientation or something) even within those 90 days.

 

[gumboot]

From Tsukasa Buddha's link:

(2) An employment agreement that excludes, restricts, or reduces an employee's entitlements under section 69ZD—

(a) has no effect to the extent that it does so; but
(b) is not an illegal contract under the Illegal Contracts Act 1970.

That's good to know. It basically means if my friend waits until they're on a permanent contract before making an issue of it, the employer's still in the wrong even if the contract explicitly states they don't get the breaks. In other words it's not an entitlement the employee can opt out of.

 

[Carnivore]

From Tsukasa Buddha's link:



That's good to know. It basically means if my friend waits until they're on a permanent contract before making an issue of it, the employer's still in the wrong even if the contract explicitly states they don't get the breaks. In other words it's not an entitlement the employee can opt out of.

Yes. I was in a similar situation in a hotel many years ago with very unreasonable foreign owners. They tried illegally changing the staff working conditions to eliminate breaks, force shift work without a rest period and force staff to work overtime with no pay. (If a restaurant shift was busy it would last at least 10 hours. The owners tried to cap it at 8 - for hourly paid workers. )

At the time I was a shop steward with a pretty ineffectual hospitality and catering workers union. Most of the staff signed up. The union wasn't able to do much but just a letter from the union to the hotel management explaining the legal situation helped a lot.

There were a lot of specific horror stories about that place that just affected individuals, but eventually most of those became court cases which the owners lost handily. Eventually they got the message and it became a much nicer place to work.

Your mate really doesn't need to do anything at the moment, it doesn't matter how long he waits before taking action. I would maybe suggest he talks to the relevant union about what they could do if the staff joined up. Simply knowing that the workers have any sort of representation can sometimes put the wind up a dodgy boss.

 

[Ryokan]

Is there no union?

 

[rjh01]

Does the employer have any other employees? If so what do they think? They might be able to do something.

 

[angrysoba]

It might be worth considering a polite letter at first querying the lack of rest and meal breaks.

I would be astonished if the company would fire them for pointing it out.

But either way, there would at least be a record of the issue being brought up.

If the guy is fired for no apparent reason then your friend would have evidence of having requested the company comply with employment entitlements.

Alternatively, why would it matter if your friend only raises the problem AFTER finishing the probationary period?

Does the law cease to be in effect if someone has agreed to work there for 90 days or is it the case that an employee can still claim their full entitlements no matter how long they have been there?

ETA: After all, we're not talking about someone who goes to a restaurant, orders a steak, eats the whole thing and then refuses to pay on the grounds that it didn't taste very good.

[Disclaimer - Finally, and another completely different possibility, is for your friend to ask themselves if the employer in question is being "unreasonable". I know that there are a lot of hard-core union(ists?) who insist that employees push for their rights at all times and to take a fundamentally confrontational line with their bosses. But I tend to think that an employee should have some autonomy from unions too and be able to weigh up if the hardship is really worth it. If, for example, we were talking about a small record shop (I know the example is antiquated, but whatever...) where your friend is the only one in the shop for a few hours by himself then it might actually be a pleasant working environment and the boss would not be able to return constantly to allow your friend to take his break. I obviously don't know your friend's situation, but this is just an example off the top of my head when I think the rules could be more flexible.]

 

[Ray Brady]

In other words it's not an entitlement the employee can opt out of.

There's a lot of those. I was a manager in a company a few years ago with a staff of a few dozen people who did shift work. As a group, the employees came to management and asked if they could get comp time in lieu of overtime pay. In other words, if they worked 48 hours in a week, could they volunteer to take a day off the next week rather than take the overtime pay. We brought the question to HR, but were told that would be illegal. The staff could not legally waive their overtime rights, even for an alternate form of compensation.

 

[Gods Big Toe]

Now that I understand the law, can you explain how it affects your friend? Is the principle or is it causing a genuine hardship? Is it only him being affected?

 

[Nursedan]

I don't get it. Why not just talk to their boss? Has this not been brought up? The OP didn't mention the boss being some unreasonable moron.

Some assertiveness might serve your friend well.

 

[angrysoba]

I don't get it. Why not just talk to their boss? Has this not been brought up? The OP didn't mention the boss being some unreasonable moron.

Some assertiveness might serve your friend well.

Good point. I wonder also why the OP advises their friend to "start causing trouble".

Couldn't there be a case of "Well, why didn't you just ask?" about this?

 

[gumboot]

Is there no union?

Not that I'm aware of, no. If there is, it's not particularly effective and not many people join it.

Does the employer have any other employees? If so what do they think? They might be able to do something.

One of my thoughts was they they could sound out the other employees about the issue and see how they feel about it.

It might be worth considering a polite letter at first querying the lack of rest and meal breaks.

I would be astonished if the company would fire them for pointing it out.

But either way, there would at least be a record of the issue being brought up.

If the guy is fired for no apparent reason then your friend would have evidence of having requested the company comply with employment entitlements.

Alternatively, why would it matter if your friend only raises the problem AFTER finishing the probationary period?

Does the law cease to be in effect if someone has agreed to work there for 90 days or is it the case that an employee can still claim their full entitlements no matter how long they have been there?

ETA: After all, we're not talking about someone who goes to a restaurant, orders a steak, eats the whole thing and then refuses to pay on the grounds that it didn't taste very good.

[Disclaimer - Finally, and another completely different possibility, is for your friend to ask themselves if the employer in question is being "unreasonable". I know that there are a lot of hard-core union(ists?) who insist that employees push for their rights at all times and to take a fundamentally confrontational line with their bosses. But I tend to think that an employee should have some autonomy from unions too and be able to weigh up if the hardship is really worth it. If, for example, we were talking about a small record shop (I know the example is antiquated, but whatever...) where your friend is the only one in the shop for a few hours by himself then it might actually be a pleasant working environment and the boss would not be able to return constantly to allow your friend to take his break. I obviously don't know your friend's situation, but this is just an example off the top of my head when I think the rules could be more flexible.]

Yeah, I'm in complete agreement on that last point. As far as I am aware it's a decent size store with a large number of staff so in theory they should be able to cover the breaks without issue.

The concern with waiting until the end of the 90 day period is that it might work against them in court if they wait that long before raising the issue, however having read the thoughts of others here I'm inclined to think that won't be an issue.

Securing the job is probably the first priority because within that 90 days the employer can dismiss an employee without cause. Even if the courts force the employer to give their staff the appropriate breaks that's not much use to my mate if they've been dismissed!

Now that I understand the law, can you explain how it affects your friend? Is the principle or is it causing a genuine hardship? Is it only him being affected?

All staff are only being given a single 15 minute meal break during a full day of work. I can't speak for anyone else but in my opinion that's totally unreasonable. The amount required by law is the bare minimum and most decent work places give their staff much more than that.

I don't get it. Why not just talk to their boss? Has this not been brought up? The OP didn't mention the boss being some unreasonable moron.

Some assertiveness might serve your friend well.

While it's possible the owners have been "accidentally" shafting their employees for two and a half years (since the law change came in) and will happily amend the situation accordingly, I can't help but feel that they must know what they're doing is illegal, and therefore we can assume they put their own profits ahead of employee welfare and are quite likely to be unreasonable.

At the moment the employee is in a very vulnerable position, with no job security. In three months they will be in a much better position to raise the issue. It comes down to a risk-reward calculation.