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Can an employer manipulate hours by starting the work day two hours earlier to avoid stat holiday pay?

Expert: British Columbia Ministry of Revenue

Blair asked:

I am a short haul truck driver living and working in Victoria, BC. My normal shifts are 12:00am til 9:00am Tuesday thru Saturday. I have worked my normal shifts so far this week (Tue 9hrs Wed 9hrs) - today is Wed Nov 10 and my employer has just called to let me know that he would like me to start work again at 10pm tonight and work til 7am Thur Nov 11 (Remembrance day) so that he will not have to pay me the stat holiday rate. I will then return to work on Sat Nov 13 to work my normal 9 hr shift. Is this right? And if it is then shouldn't I be entitled to overtime for 18 hours of work on Wed Nov 10? A response from you would be greatly appreciated.

British Columbia Ministry of Revenue answered:

I spoke with a representative at the Ministry of Labour, who explained that unfortunately, your employer can manipulate the timing of your shifts this way to avoid paying you the overtime rate for the November 11th stat holiday.

The person I spoke with also explained that since you start work on Wednesday at 12:00 am, work until 9:00 am and then return that evening, you will have worked 11 hours in a 24 hour period.

She said that this means the two hours you work from 10:00 pm until 12:00 am the following day should be paid at the overtime rate. (Due to the way the Employment Standards Act treats the 24 clock, the remaining 7 hours that you work on the Thursday will not qualify for overtime pay, nor will they count as time worked on the stat holiday, so they will be paid at straight pay rates.)

You should, however, still receive an average day's pay for the stat holiday.

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