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Difference between revisions of "Employment Law Issues (9:V)"
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Employment Law Issues (9:V) (view source)
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for federally regulated employees, . This section primarily discusses the ''ESA'', but the ''Canada Labour Code'' has many similar provisions. | for federally regulated employees, . This section primarily discusses the ''ESA'', but the ''Canada Labour Code'' has many similar provisions. | ||
'''Make sure the individual considering starting a claim is not exempt from the ESA.''' | '''Make sure the individual considering starting a claim is not exempt from the ESA.''' Make sure the individual considering starting a claim is not exempt from the ESA. Be aware that certain professions and employees are exempt from the ESA, or parts of the ESA. Review the ''Employment Standards Regulations'' to determine if the employee is covered by the ESA. See ''ES Regulation'', Part 7. | ||
Be aware that certain professions and employees are exempt from the | |||
See IV.C.5: Exceptions to the General Rule (Specialty Professions) to determine whether the ''ESA'' applies to the employee in question. See [[{{PAGENAME}}#6. Hours of Work and Overtime Pay | V.A.6: Hours of Work and Overtime Pay]] to determine if the employee is exempt from overtime. | See IV.C.5: Exceptions to the General Rule (Specialty Professions) to determine whether the ''ESA'' applies to the employee in question. See [[{{PAGENAME}}#6. Hours of Work and Overtime Pay | V.A.6: Hours of Work and Overtime Pay]] to determine if the employee is exempt from overtime. | ||
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=== 3. Talent Agencies === | === 3. Talent Agencies === | ||
A number of the more recent amendments to the ESA deal with talent agencies and impose minimum standards on what was previously an unregulated industry. A talent agency must be licensed annually under the Act. Once an agency is licensed, it may receive wages on behalf of clients who have done work in the film or television industry. Section 38.1 of the ES Regulation provides that wages received by a talent agency from an employer must be paid to the employee within a prescribed period: five business days from receipt of payment if payment is made within B.C. and | A number of the more recent amendments to the ESA deal with talent agencies and impose minimum standards on what was previously an unregulated industry. A talent agency must be licensed annually under the Act. Once an agency is licensed, it may receive wages on behalf of clients who have done work in the film or television industry. Section 38.1 of the ES Regulation provides that wages received by a talent agency from an employer must be paid to the employee within a prescribed period: five business days from receipt of payment if payment is made within B.C. and twelve business days from receipt of payment if payment is made from outside B.C. | ||
Talent agencies can charge a maximum 15 percent commission, and must ensure that the employee receives at least minimum wage after this deduction. The only other fee a talent agency may charge is for photography, and this charge must not exceed $25.00 per year. This fee may only be deducted from wages owed to the employee. When a talent agency is named in a determination or order, unpaid wages constitute a lien against the real and personal property of the agency. A 1999 amendment to section 127 of the Act gives the Lieutenant Governor in Council the power to regulate these agencies and, accordingly, the ES Regulation should be consulted for further information. A list of talent agencies currently licensed in B.C. is available | Talent agencies can charge a maximum 15 percent commission, and must ensure that the employee receives at least minimum wage after this deduction. The only other fee a talent agency may charge is for photography, and this charge must not exceed $25.00 per year. This fee may only be deducted from wages owed to the employee. When a talent agency is named in a determination or order, unpaid wages constitute a lien against the real and personal property of the agency. A 1999 amendment to section 127 of the Act gives the Lieutenant Governor in Council the power to regulate these agencies and, accordingly, the ES Regulation should be consulted for further information. A list of talent agencies currently licensed in B.C. is available at http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/specific-industries/talent-agencies. | ||
=== 4. Child Employment === | === 4. Child Employment === | ||
Employing a child is an offence for which both the employee and the employer are liable. The ESA does not apply to certain types of employment such as babysitters and some students (ES Regulation, s 32). | Employing a child is an offence for which both the employee and the employer are liable. The ESA does not apply to certain types of employment such as babysitters and some students (''ES Regulation'', s 32). | ||
Section 9 of the ESA states that children under the age of 15 cannot be employed unless the employer has obtained written permission from a parent or guardian. The employer must have this written consent on file indicating that the parent or guardian knows where the child is working, the hours of the work, and the type of work. No person shall employ a child under the age of 12 years unless the employer has obtained permission from the Director of Employment Standards. In cases where permission from the Director is required, the Director also has the ability to set conditions of employment for the child. For complete details of conditions, see www.labour.gov.bc.ca/esb or call 1-800-663-7867. | Section 9 of the ESA states that children under the age of 15 cannot be employed unless the employer has obtained written permission from a parent or guardian. The employer must have this written consent on file indicating that the parent or guardian knows where the child is working, the hours of the work, and the type of work. No person shall employ a child under the age of 12 years unless the employer has obtained permission from the Director of Employment Standards. In cases where permission from the Director is required, the Director also has the ability to set conditions of employment for the child. See ''ES Regulation'', Part 7.1. For complete details of conditions, see www.labour.gov.bc.ca/esb or call 1-800-663-7867. | ||
Common forms of allowable employment for those under 12 are found in the film and television industries. For more information on the employment of young people in the B.C. entertainment industry, consult the | Common forms of allowable employment for those under 12 are found in the film and television industries. For more information on the employment of young people in the B.C. entertainment industry, consult the Employment Standards Branch fact sheet on this matter at: http://www2.gov.bc.ca/gov/content/employment-business/employment-standards--advice/employment-standards/specific-industries/employment-of-young-people-in-entertainment | ||
For more information regarding the employment of young people, see the fact sheet on this matter at: | |||
http://www2.gov.bc.ca/gov/content/employment-business/employment-standards--advice/employment-standards/factsheets/general-employment-of-young-people | |||
If an employer is accused of illegally using child employment they will carry the onus in proving that it was either justified, or that the child was of legal age. | If an employer is accused of illegally using child employment they will carry the onus in proving that it was either justified, or that the child was of legal age. | ||
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==== a) Minimum Wage and the Entry Level Wage ==== | ==== a) Minimum Wage and the Entry Level Wage ==== | ||
As of September 15, | As of September 15, 2016, the general minimum wage is $10.85 per hour for all persons in BC as indicated in Part 4 of the ES Regulation. One exception to this is liquor servers, who are entitled to a minimum wage of $9.60. Since tips and gratuities are not wages, employees must be paid at least minimum wage in addition to any tips or gratuities they receive. Please note that there are other exceptions under Part 4 of the ES Regulation, which include live-in home support workers, resident caretakers, and farm workers. See ss 16–18 of the ''ES Regulation''. | ||
The BC government has announced its commitment to yearly minimum wage increases linked to the BC Consumer Price Index. For more information regarding up to date information on minimum wage in BC, see the | The BC government has announced its commitment to yearly minimum wage increases linked to the BC Consumer Price Index. For more information regarding up to date information on minimum wage in BC, see the Minimum Wage Factsheet at: www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/factsheets/minimum-wage | ||
Federally regulated employees are entitled to the minimum wage of the province that they work in (Canada Labour Code, s 178). Thus, federal employees working in B.C. are entitled to $10.85 per hour. | |||
==== b) Wage Clawbacks ==== | |||
Section 16 of the ESA deals with the issue of “claw-backs”. This term refers to an employer who gives an employee an advance on future wages or commissions. Section 16 states that when the employer re-claims such advances, they must not take back an amount that would leave the employee under the minimum wage rate for the hours worked. Employers who claw-back wages from commission workers must ensure that the amount of wages clawed back does not cause the worker to ultimately receive less than minimum wage. | Section 16 of the ESA deals with the issue of “claw-backs”. This term refers to an employer who gives an employee an advance on future wages or commissions. Section 16 states that when the employer re-claims such advances, they must not take back an amount that would leave the employee under the minimum wage rate for the hours worked. Employers who claw-back wages from commission workers must ensure that the amount of wages clawed back does not cause the worker to ultimately receive less than minimum wage. | ||
==== c) Payment of Wages ==== | |||
'''Timing''' | |||
Employers have to pay wages- at least semi-monthly and no later than eight days after the end of the pay period (ESA, s 17). This section does not apply to public school teachers and professors (ES Regulation, s 40). Wages, as defined in Part 1, include salaries, commissions, work incentives, compensation for length of service (ESA, s 63), money by order of the tribunal, and money payable for employees’ benefit to a fund or insurer (in Parts 10 and 11 only). The definition does not include, for instance, expenses, penalties, gratuities, or travel allowance (however, travel time is considered time worked for which wages are payable, whereas commuting time is generally not). | |||
'''No Deductions for Business Costs''' | |||
An employer cannot require an employee to pay any of the employer’s business costs. | |||
'''Wage Statements''' | |||
Every payday, employees must be given a statement showing hours worked, wage rate/overtime wage rate, deductions, method of wage calculation, gross/net wages, and time bank amounts (ESA, s 27). Electronic statements can be provided instead under certain conditions (s 27(2)). | |||
'''Wage Payments on End of Employment''' | |||
If an employee quits, all wages and vacation pay owed must be paid within six days of the last day worked. When the employer terminates the employment, all wages (and vacation pay) must be paid within 48 hours of termination (ESA, s 18). Certain notice requirements dictated by the ESA are set out later in this chapter. | |||
'''Enforcement''' | |||
To enforce the payment of wages, the ESA provides that the Director can arrange payment of wages to the employee, or to the Director, if he or she is satisfied that wages are owed to the employee. Under the ESA, only the Canada Customs and Revenue Agency has priority over the Employment Standards Branch. Finally, the Section 87 of the ESA provides that unpaid wages in a determination, settlement agreement or an order constitute a lien on real property owned by the employer. The enforcement mechanisms available to the Employment Standards Branch are such that the lien often gets priority over other claims against the property (see also ''Helping Hands Agency Ltd v British Columbia (Director of Employment Standards)'', [1995] BCJ No 2524 (BCCA)). | |||
Allowable deductions include EI, CPP, income tax, charitable donations, maintenance order payments (such as spousal or child support), union dues, pensions, insurance (medical and dental), and payments to meet credit obligations. Benefit packages often allow a whole range of deductions from employee wages. In the case of an employer who fails to remit these deductions, the Employment Standards Branch will collect from the employer the premiums the employee paid. However, the Branch is not able to collect costs incurred by an employee who believed he or she was insured, i.e. actual cost of dental work done. If an employee has suffered a loss such as this, they should consider whether they have a contractual agreement with the employer, and whether it has been breached; if so, they may be able to recover the loss in Small Claims Court. | If an employee has not been paid wages, and the limitation date under the ESA has passed, the employee may still be able to file a claim in Small Claims Court or the Civil Resolution Tribunal, as it is a term of any employment contract that the employee be paid for their labour. [[See Chapter 20: Small Claims (20) | Chapter 20: Small Claims]] and [[Section VI.D: Limitation Periods (VI.D) | Section VI.D Limitation Periods]]. | ||
==== d) Allowable Deductions ==== | |||
Only certain deductions can be made from an employee’s wages (''ESA'', ss 21 and 22). There must be a written assignment of wages. | |||
Allowable deductions include EI, CPP, income tax, charitable donations, maintenance order payments (such as spousal or child support), union dues, pensions, insurance (medical and dental), and payments to meet credit obligations. Benefit packages often allow a whole range of deductions from employee wages. In the case of an employer who fails to remit these deductions, the Employment Standards Branch will collect from the employer the premiums the employee paid. However, the Branch is not able to collect costs incurred by an employee who believed he or she was insured, i.e. actual cost of dental work done. If an employee has suffered a loss such as this, they should consider whether they have a contractual agreement with the employer, and whether it has been breached; if so, they may be able to recover the loss in Small Claims Court or the Civil Resolution Tribunal. | |||
Section 22(4) of the ''ESA'' allows the employer to deduct money from the employee’s paycheque to satisfy the employee’s credit obligation (for example, if the employer has loaned the employee money, or if the employee has agreed to pay the employer a monthly sum for personal use of the employer’s car). To do this, the employee must make a written assignment of wages to the employer. | Section 22(4) of the ''ESA'' allows the employer to deduct money from the employee’s paycheque to satisfy the employee’s credit obligation (for example, if the employer has loaned the employee money, or if the employee has agreed to pay the employer a monthly sum for personal use of the employer’s car). To do this, the employee must make a written assignment of wages to the employer. | ||
==== | ==== e) Business expenses charged to an employee ==== | ||
An employer cannot require employees to pay any business costs – as either a deduction from their paycheque or out of their pockets or gratuities. Examples of business costs include loss due to theft, damage, breakage, or poor quality of work, damage to employer’s property, or failure to pay by a customer (e.g. dine-and-dash). If an employer deducts business costs from an employee’s wages they can be required to reimburse the employee for the amount, and can be fined by the Employment Standards Branch for failing to follow the ''ESA''. | An employer cannot require employees to pay any business costs – as either a deduction from their paycheque or out of their pockets or gratuities. Examples of business costs include loss due to theft, damage, breakage, or poor quality of work, damage to employer’s property, or failure to pay by a customer (e.g. dine-and-dash). If an employer deducts business costs from an employee’s wages they can be required to reimburse the employee for the amount, and can be fined by the Employment Standards Branch for failing to follow the ''ESA''. | ||
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If the manager does not have a contract, collect any evidence you can regarding an agreement on the manager’s hours of work, and evidence on historical hours worked. | If the manager does not have a contract, collect any evidence you can regarding an agreement on the manager’s hours of work, and evidence on historical hours worked. | ||
The ''ESA'' Interpretation Guidelines provides some helpful discussion on overtime, and can be found at http:// | The ''ESA'' Interpretation Guidelines provides some helpful discussion on overtime, and can be found at http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/igm/esa-part-4-section-35. | ||
==== e) Minimum Daily Hours ==== | ==== e) Minimum Daily Hours ==== | ||
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It is possible for an employer to apply for a variance to exclude employees from certain provisions of the ''ESA''. To apply for a variance, the employer must write a letter to the Director of Employment Standards, and must have the signatures of at least 50 percent of the employees who are to be affected. When reviewing the application, the Director must consider whether the variance is inconsistent with the purpose of the ''ESA'' and the Regulation, and whether any losses incurred by the employees are balanced by any gains. | It is possible for an employer to apply for a variance to exclude employees from certain provisions of the ''ESA''. To apply for a variance, the employer must write a letter to the Director of Employment Standards, and must have the signatures of at least 50 percent of the employees who are to be affected. When reviewing the application, the Director must consider whether the variance is inconsistent with the purpose of the ''ESA'' and the Regulation, and whether any losses incurred by the employees are balanced by any gains. | ||
For more information see http:// | For more information see: http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/factsheets/variances. | ||
==== h) Averaging Agreements ==== | ==== h) Averaging Agreements ==== | ||
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Employees are entitled to both a minimum amount of annual vacation and to vacation pay under Part 7 of the ''ESA''. Note that vacation time and vacation pay are separate entitlements under the ''ESA''. Employees are entitled to both vacation pay and actual time away from work. | Employees are entitled to both a minimum amount of annual vacation and to vacation pay under Part 7 of the ''ESA''. Note that vacation time and vacation pay are separate entitlements under the ''ESA''. Employees are entitled to both vacation pay and actual time away from work. | ||
Employment contracts must provide at least the minimums vacation and vacation pay entitlements as set out in the ''ESA''. | Employment contracts must provide at least the minimums vacation and vacation pay entitlements as set out in the ''ESA'' (ss 57-60). | ||
Employees can be entitled to vacation and vacation pay entitlements above the ''ESA'' minimums if agreed to in an employment contract. | Employees can be entitled to vacation and vacation pay entitlements above the ''ESA'' minimums if agreed to in an employment contract. | ||
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If the employee is terminated, the employer is required to pay out any vacation pay owing to the employee. Be aware that in some circumstances employees will have claims for years of vacation pay owing. These monies may still be owing and collectable, and may not be limited by the standard six month limit for how far back an employee can claim wages. | If the employee is terminated, the employer is required to pay out any vacation pay owing to the employee. Be aware that in some circumstances employees will have claims for years of vacation pay owing. These monies may still be owing and collectable, and may not be limited by the standard six month limit for how far back an employee can claim wages. | ||
For a detailed explanation of vacation and vacation pay entitlement, sSee Part 7 of the ESA, and the ESA Interpretation Guidelines found at: http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/igm/esa-part-7-section-58. | |||
=== 8. Statutory Holidays and Statutory Holiday Pay === | === 8. Statutory Holidays and Statutory Holiday Pay === | ||
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==== a) Pregnancy and Parental Leave ==== | ==== a) Pregnancy and Parental Leave ==== | ||
Pregnancy leave is protected under the '' | Pregnancy leave is protected under the ''ESA'' and the ''HRC''. An employee dismissed while on pregnancy leave may also be entitled to a larger common law severance. | ||
Under ss 50 and 51 of the ''ESA'', a birth mother is entitled to take up to 17 consecutive weeks of unpaid pregnancy leave if the leave starts before birth or termination of the pregnancy. In addition, the birth mother can take a further 35 weeks of parental leave where pregnancy leave was taken, or 37 consecutive weeks of parental leave where pregnancy leave was not taken. Although the employer does not have to pay wages during a pregnancy or parental leave, Employment Insurance may cover a portion of the wages during this period if the person qualifies. Please refer to [[Introduction to Employment Insurance (8:I) | Chapter 8: Employment Insurance]] for more information. The parental leave periods to which birth fathers and adoptive parents are entitled were also extended by the ''ESA'' from 12 to 37 consecutive weeks. Employees must give their employer four weeks written notice of pregnancy or parental leave, but even if they do not, they are still protected by the ''ESA''. | Under ss 50 and 51 of the ''ESA'', a birth mother is entitled to take up to 17 consecutive weeks of unpaid pregnancy leave if the leave starts before birth or termination of the pregnancy. In addition, the birth mother can take a further 35 weeks of parental leave where pregnancy leave was taken, or 37 consecutive weeks of parental leave where pregnancy leave was not taken. Although the employer does not have to pay wages during a pregnancy or parental leave, Employment Insurance may cover a portion of the wages during this period if the person qualifies. Please refer to [[Introduction to Employment Insurance (8:I) | Chapter 8: Employment Insurance]] for more information. The parental leave periods to which birth fathers and adoptive parents are entitled were also extended by the ''ESA'' from 12 to 37 consecutive weeks. Employees must give their employer four weeks written notice of pregnancy or parental leave, but even if they do not, they are still protected by the ''ESA''. | ||
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If an employee has a dispute with their employer regarding pregnancy or parental leave, they may also be able to file a complaint for discrimination based on sex or family status with the Human Rights Tribunal. Additionally, where an employer offers compensation benefits for health conditions and then excludes pregnancy as a ground for claiming compensation, the employer may have acted in a discriminatory fashion. | If an employee has a dispute with their employer regarding pregnancy or parental leave, they may also be able to file a complaint for discrimination based on sex or family status with the Human Rights Tribunal. Additionally, where an employer offers compensation benefits for health conditions and then excludes pregnancy as a ground for claiming compensation, the employer may have acted in a discriminatory fashion. | ||
If an employee has been terminated while on leave, in some cases they may be able to make a claim for wrongful dismissal in Small Claims Court. See [[Remedies in Employment Law (9:VI) | Section VI: Remedies]] for further details. | If an employee has been terminated while on leave, in some cases they may be able to make a claim for wrongful dismissal in Small Claims Court or the Civil Resolution Tribunal. See [[Remedies in Employment Law (9:VI) | Section VI: Remedies]] for further details. Consider whether the circumstances of dismissal in breach of protected leave provisions might be grounds for aggravated or punitive damages in civil court. | ||
An employer can terminate the employment of a pregnant person if the termination is part of legitimate downsizing (s 54). | An employer can terminate the employment of a pregnant person if the termination is part of legitimate downsizing (s 54). | ||
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==== g) Proposed Leave for Victims of Domestic Violence ==== | ==== g) Proposed Leave for Victims of Domestic Violence ==== | ||
Bill M | Bill M 235, the proposed Employment Standards (Domestic Violence Leave) Amendment Act, is currently in first reading as of March of 2017. Although not in force, the Act in its current formulation proposes up to 10 days of paid leave and up to 17 weeks of unpaid leave for specific purposes if an employee or the employee’s child has experienced domestic or sexual violence. | ||
This amendment is not currently law at the time of publication of this manual. However, if a claimant is adversely impacted at work as a result of domestic violence, it is a good idea to check on the status of this law, to see if it may provide in the circumstances. | This amendment is not currently law at the time of publication of this manual. However, if a claimant is adversely impacted at work as a result of domestic violence, it is a good idea to check on the status of this law, to see if it may provide in the circumstances. | ||
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=== 10. Professions with Special Provisions and Limited Exemptions under the Employment Standards Act === | === 10. Professions with Special Provisions and Limited Exemptions under the Employment Standards Act === | ||
Some professions remain excluded from the requirements of the ''ESA''. However, this does not always mean an employer is fully excluded; they may only be exempted from parts of the legislation. Also, employers not commonly covered can apply to the Employment Standards Branch for a variance, making them fully exempt from the requested parts of the ''ESA''. | Some professions remain excluded from the requirements of the ''ESA''. However, this does not always mean an employer is fully excluded; they may only be exempted from parts of the legislation. Also, employers not commonly covered can apply to the Employment Standards Branch for a variance, making them fully exempt from the requested parts of the ''ESA''. Check the legislation directly, and any appropriate case law on the matter. | ||
==== a) Independent Contractors ==== | ==== a) Independent Contractors ==== | ||
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==== e) Silviculture (Reforestation) Workers ==== | ==== e) Silviculture (Reforestation) Workers ==== | ||
Special rules apply to workers in the reforestation and related industries. A silviculture worker is paid on a piece rate basis. This is defined as a rate of pay based on a measurable amount of work completed (e.g., payment by the tree). Whatever the rate, it must exceed the minimum wage rate. The ''ES Regulation'' lays out specific requirements that employers in these industries must meet relating to shift scheduling, holiday pay, and overtime. The special regulations are intended to address the remote job sites and special piece rate payment schemes that are popular in this industry. | Special rules apply to workers in the reforestation and related industries (as defined in ''ES Regulation'' s 1(1)). A silviculture worker is paid on a piece rate basis. This is defined as a rate of pay based on a measurable amount of work completed (e.g., payment by the tree). Whatever the rate, it must exceed the minimum wage rate. The ''ES Regulation'' lays out specific requirements that employers in these industries must meet relating to shift scheduling, holiday pay, and overtime. The special regulations are intended to address the remote job sites and special piece rate payment schemes that are popular in this industry. See ''ES Regulation'' s 37.9. | ||
==== f) Professionals ==== | ==== f) Professionals ==== | ||
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There are additional exceptions and variances to the ''ESA'' set out in the ''ES Regulation'', Part 7. Some of the professions for which there are exceptions or variances to the ESA include: | There are additional exceptions and variances to the ''ESA'' set out in the ''ES Regulation'', Part 7. Some of the professions for which there are exceptions or variances to the ESA include: | ||
*Election workers | *Election workers | ||
*Fishers | *Fishers | ||
