Explained: Hospitality and Retail Workers’ Rights during Level Four
Understanding your rights as an employee can be very confusing at the best of times and in a foreclosure, determining your rights becomes even trickier. Here is a guide to questions you may have about your rights during level four.
Do I still have to be paid while in lockdown?
Yes, your employer must continue to honor your employment contract, even if level four means you cannot work. There is a caveat here because employment matters like this are subject to interpretation and are not necessarily hard and fast rules. However, a decision taken last year by the Labor Relations Authority confirmed that workplace closures following Covid-19 alone do not allow an employer to withhold wages. This is because you are ready and able to work, but circumstances beyond your control (the lockdown) mean you cannot.
If my employer has to close during level four, do I have to take annual leave?
No. Your employer cannot require you to use your vacation entitlement with 14 days notice.
What about sick leave?
Employers cannot force employees to take sick leave because of the lockdown.
How can I access the wage subsidy?
Your employer must access the grant on your behalf and pass it on to you if their income has dropped by at least 40% due to the change in alert level.
How much am I entitled to receive from the wage subsidy?
The wage subsidy is $ 600 per week for each full-time employee (20 hours per week or more) and $ 359 per week for each part-time employee (less than 20 hours per week).
In general, you should be paid as usual according to your employment contract.
If that’s not possible (i.e. your employer really can’t), they should do their best to pay you at least 80% of your regular salary. Otherwise, they must at least pay you the full rate of the subsidy. If you usually earn less than the grant amount, your employer must pay you your regular salary. Any reduction in salary must be the subject of a written agreement between you and your employer.
Your employer should be clear on how they calculate what you would normally earn, especially if you recently worked less than normal. For example, your employer might choose to use the calculation of ordinary weekly salary of the 2003 Vacation Act (s8), based on your “ordinary” weekly gross earnings before foreclosure.
I work different hours each week – am I eligible for the subsidy?
Yeah, it just gets a little more confusing. You are entitled to your average hours of pay.
If you work variable hours, employers should use some sort of average (the MSD website suggests using the average weekly hours over the past 12 months, or over the period you were employed if it is less than that). It should not be based on the guaranteed minimum hours in your contract if you usually work more than those hours.
I am a casual employee, can I benefit from the subsidy?
Casual workers are not entitled to continuous employment, so there is no guarantee that you will continue to be employed. But your employer can still apply for the wage subsidy on your behalf and pay you accordingly. For casual employees, the same calculation above for average wages applies.
What if I just took a vacation leave? Will this be taken into account when calculating my normal salary?
Paid time off should be included in your hours worked and should not mean a deduction from your regular pay. The rules get a bit more blurry if you’ve taken unpaid leave – I’ll update that if I get any clarification.
Can my boss use what is left of my wage subsidy for other expenses?
No. Any difference should be used to supplement the salaries of other affected employees only – the wage subsidy is designed to keep employers in touch with their employees.
I work in a bar / restaurant / cafe, do I have to work at level four?
Nope. Bars, cafes and restaurants cannot operate at level four.
I work in retail, am I an essential worker?
May be. Here is a list of businesses that can remain open to the public and have customers on their premises. Outside of this list, general retail, household goods and clothing stores can only operate through contactless delivery of “essential” products. They cannot have physical storefronts open to the public, and customers must not pick up merchandise from stores.
What counts as essential goods?
While the rules are not prescriptive, it certainly seems irresponsible for companies to interpret these ambiguities liberally. According to business.govt website, the essentials are those which help people “to stay healthy and safe while secluding themselves, working or studying at home, staying in communication with whānau and his friends, and keeping up to date with news and health information ”. Think about necessary clothing, medicines and hygiene products, cell phones, appliances, heaters, home office equipment.
What are the things that are not essential?
Items like game consoles, costumes, high heels, makeup, jewelry, and most sports equipment are not essential. Careful reading of the rules, which companies should follow, would mean that these are examples of non-essential items and your employer shouldn’t ship orders of them – in doing so, they create unnecessary risk and put a strain on them. additional pressure on national distribution lines, which means a longer wait for people who have ordered essential products.
I have noticed that a store I shop at is still selling non-essential items online. What should I do?
Of the 20 local clothing websites I visited (for “research” purposes) today, only eight appeared to be following the rules with separate essential item categories and a deadline for non-essential items up. that alert levels change. Some offered delivery of jewelry, costumes, vases, evening dresses, high heels, watches, dress shoes and scented candles. It all looks like a very vague reading of the definition of essential goods. Level four is not meant to be a free online shopping situation for everyone.
If you see this and have any concerns, contact the store. Let them know that you are concerned about their adherence to the level four rules which are there to protect their staff and the community at large.
While this is frustrating and companies should ideally take a cautious approach to the rules, there is always the possibility that they have honestly misunderstood the definitions of what is essential. If they don’t address your concerns, maybe take your money elsewhere.
If I have to go to work to pack essential orders, what safety measures does my employer need to put in place?
“If you work, it should be safe,” says First Union national coordinator Ben Peterson. In general, your workplace should operate with minimal staff, social distancing should be in place, everyone should wear masks (and your employer should provide them). Hospitality union Raise the Bar has a very useful infographic here which explains this in more detail. If you don’t feel safe, contact your union for help.
Can the company I work for offer click and collect?
Preferably not. Unless you work in a supermarket, retail stores should only process orders by mail or delivery.
What if i don’t feel safe going to work?
An employee can rightly refuse to go to work if there is a serious risk to health and safety. If the risk level is lower than that and you still refuse to go to work because you don’t feel safe, it depends on whether this concern is reasonable for it to be justified.
However, it is important to note that your employer should take into account any real fears and whether support can be provided to resolve or alleviate them.
What if I or someone in my bubble suffers from a high risk illness or if I need to self-isolate? Should I go to work?
In these situations, your employer needs to be flexible. Your health and safety are a priority. Peterson says there would be an “expectation for employers to be flexible in this situation” because “there is financial support available to businesses” via the Covid-19 leave assistance scheme.
What should I do if my employer does not follow the rules?
Unfortunately, these rules are based on a high trust model and there are not a large number of labor inspectors to ensure that the rules are followed.
Peterson believes that corporate violation of these rules could potentially pose an even greater risk to public health than anti-lockdown protests. So if there are any issues, it is worth talking to your employer. Peterson acknowledges that it is particularly difficult for workers to voice their concerns, especially those whose jobs may be precarious, but says that “people should trust that there are people who will support you.”
Check your coworkers and do what you can to make sure you are all treated fairly and consistently. Reach out to your employer as a unified group if you need to. It’s a good reminder to join your union if you’ve thought about it – numbers are powerful.
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