The British Columbia Restaurant and Foodservices Association (BCRFA) is accusing WorkSafeBC of bullying tactics in how the independent worker-insurance agency assesses, penalizes and fines restaurants.
The dispute centres on at least many, if not most, restaurant owners not including servers' tips in their calculations of payroll costs, which they send to WorksafeBC so that the insurer can assess how much the business must pay in insurance premiums, or assessments.
Workers who get injured on the job are entitled to WorksafeBC benefits based on how much they make, including tips. WorkSafeBC told BIV workers can provide pay receipts or bank statements to back up claims of how much they earn in tips.
Information on how much servers make in tips is readily available given that most people today pay using credit cards and the tips are tabulated with receipts.
WorksafeBC defended providing that compensation to restaurant workers, saying "if tips were not included in a worker’s income, their wage-loss benefits from WorkSafeBC would not reflect their actual earnings."
Restaurant owners' custom, Tostenson said, has been to calculate payroll costs without including the tips because the tips do not come from the restaurant. No educational emails or other communication has gone to restaurants saying that they have been calculating their payrolls incorrectly, he added.
WorkSafeBC countered by saying that employers are given opportunities to be in compliance before the insurer assesses any penalties. Audits are done to educate employers, and if an employer works with WorksafeBC, they will likely not be issued a penalty, WorksafeBC said in an email.
Employers who do not agree with a WorkSafeBC decision can request a review of the decision, and if still not in agreement, can appeal to the Workers’ Compensation Appeal Tribunal, which is independent of WorkSafeBC, it said.
Tostenson, however, said that he was made aware of the issue in October 2023, when a restaurant owner was allegedly hassled by a WorksafeBC assessment officer for not including tips in his payroll calculation.
"I don't think they were very nice to him, and they assessed him $20,000 plus a $5,000 fine," Tostenson said.
"WorkSafe is just being so insensitive. They're being a bit of a bully, and they're being, you know, really not a collaborator with industry on this issue."
WorksafeBC said it "strongly disagrees with this characterization," adding that the word bullying "should not be used lightly" and that "it is unfair to refer to audits finding non-compliance as a form of bullying."
It said that instead, its assessment process is "committed to fairness," and that it operates in "a professional manner."
There has been no change in its policy that restaurant employers must include tips as part of payroll calculations, WorksafeBC said.
"In May 2024, WorkSafeBC proposed updating its practice directive for assessable payroll to change the definition of tips, providing clarity on how tips from different sources should be classified," WorksafeBC wrote.
"Given concerns raised by the BCRFA, WorkSafeBC paused this change. The practice directive has not been implemented."
WorkSafeBC acknowledged that it is aware from its audits that some employers did not fully understand that they had to include tips in payroll calculations. That was what prompted a review and the now-paused proposed change to its practice directive around tips, it said.
The insurer, which administers B.C.'s Workers Compensation Act and does not get any money from taxpayers, said it would not be fair to the restaurant owners who are calculating their payrolls correctly, by including tips, if other restaurants do not do that.
"This would effectively mean that restaurants who follow the rules would be subsidizing the claim costs of restaurants that do not," it said in the email.
Tostenson said WorkSafeBC reneged on an agreement that he reached with its executives last September. He said that the provincial workplace insurer had agreed to consult with restaurant owners and educate them on how they should be calculating payroll costs. Tostenson expected that no enforcement would take place for at least a year, if not 15 months or more.
Instead, he said, WorkSafeBC in November started reassessing and fining restaurant owners again.
"They said to us, in 2024 September, that they would start consultations in the spring of 2025," Tostenson said. "Well, we're in the spring of 2025."
WorksafeBC said the agreement was to "pause the implementation of new language clarifying tips and gratuities," and that this has been done.
Tostenson said he and others in the sector have gone to the B.C.'s Ministry of Labour and "virtually everybody we can in government" to try to rein in WorkSafeBC from its actions against restaurant owners.
WorkSafeBC, however, is run independent of government.
As such, Tostenson said, "we have no other course of action but to go public with this and let the industry and the public know that we're trying to work on this, but we're not getting anywhere."
Restaurants are assessed at a lower rate than other ventures, according to WorksafeBC.
In 2025, the restaurant category saw its base premium rate reduced by 12 per cent, to $0.78 from $0.89 per $100 of assessable payroll. The average base premium rate across all industries in B.C. is $1.55 per $100 of payroll.
