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Difference between revisions of "Employment Law Issues (9:V)"
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After 5 days of work, the employer is required to pay the employee 4% of his wages as vacation pay. After 5 years of employment, this increases to 6%. Employers are required to bank vacation pay for an employee, and then pay the employee their banked vacation pay 7 days before the employee’s annual vacation. | After 5 days of work, the employer is required to pay the employee 4% of his wages as vacation pay. After 5 years of employment, this increases to 6%. Employers are required to bank vacation pay for an employee, and then pay the employee their banked vacation pay 7 days before the employee’s annual vacation. | ||
p9- | Alternatively, with written consent the employer can pay the employee his vacation pay on each paycheck. If the employee is terminated, the employer is required to pay out any vacation pay owing to the employee. | ||
See Part 7 of the ''ESA'', and the [http://www.labour.gov.bc.ca/esb/igm/esa-part-7/igm-esa-s-57.htm ESA Interpretation Guidelines], for a detailed explanation of vacation and vacation pay entitlement. | |||
=== 8. Statutory Holidays and Statutory Holiday Pay === | |||
Employees are entitled to ten paid holidays a year: New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, B.C. Day, Labour Day, Thanksgiving Day, Remembrance Day, and Christmas Day (''ESA'', Part 5). “Family Day” is a new holiday as of 2013, and is scheduled to occur on the third Monday of every February. Boxing Day, Easter Sunday, and Easter Monday are not statutory holidays in B.C. Federal employees are entitled to Boxing Day but not to B.C. Day. | |||
To be entitled to a statutory holiday, an employee must have been employed by the employer for at least 30 calendar days before the statutory holiday and either have worked under an averaging agreement within this period or have worked or earned wages for 15 of these 30 calendar days. | |||
Employees who work on a statutory holiday receive one and one-half times their regular rate of pay for the first 12 hours worked. Any further time worked should be paid at twice the regular amount of pay. Where a statutory holiday falls on a non-working day, the employer must give the employee a regular working day off with pay. An employee who is given a day off on a statutory holiday or a day off instead of one must be paid statutory holiday pay equal to at least an average day’s pay. | |||
An average day’s pay is the employee’s gross earnings in the past 30 days, divided by days worked, where: | |||
*'''Amount paid''' is the total amount paid or payable to the employee for the work done and wages earned during the 30 calendar day period preceding the statutory holiday including vacation pay for any days of vacation within that period, less any amounts paid or payable for overtime; and | |||
*'''Days worked''' are the number of days the employee worked or earned wages within the 30 calendar day period. | |||
=== 9. Leaves of Absence === | |||
Part 6 of the ''ESA'' regulates leaves of absence. Again, Part 7 of the ''ES Regulation'' should be consulted to determine if a client is covered by this part of the Act. Those employees who are not protected by the ''ESA'' may have protection under the governing statutes of their specific profession. | |||
An employee who is on leave under any of the following categories maintains several of the same protections he or she received while working. The employment is deemed to be continuous for the purposes of calculating annual vacation entitlement and any pension, medical, or other plan beneficial to the employee (''ESA'', s 56). At the time of reinstatement, employees on leave are entitled to return to their previous position or to a comparable one, and are also entitled to any wage and benefit increases that they would have received had they remained at work (s 54). | |||
An employer may not terminate an employee for taking a leave he or she is entitled to take under the ''ESA''. In the case of an alleged contravention of Part 6 by the employer, the burden is on the employer to prove that the reason for a termination was not a pregnancy, jury duty or other leave allowed by the Act (s 126(4)(c)). When there is an infraction of this section of the Act, the Director of Employment Standards can order that the employee be reinstated (s 79). However, this almost never occurs (see [[Remedies in Employment Law (9:V) | Section V: Remedies]] for more details). Section 79(2) is a very powerful “make whole remedy” which allows the Director to reinstate the employee and pay them any wages lost due to the contravention of the Act. Termination during a leave may also give rise to a cause of action before the Human Rights Tribunal. | |||
If an employee was dismissed due to a leave of absence but the limitation date to file a claim with the Employment Standards Branch has passed, consider whether the employee may have a wrongful dismissal claim; see section [[{{PAGENAME}}#E. Termination of Employment | IV.E: Termination of Employment]]. | |||
'''NOTE:''' The protections offered under ss 54 and 56 of the ''ESA'' do not apply if the leave taken by the employee is greater than that allowed by the Act (s 54). | |||
==== a) Pregnancy and Parental Leave ==== | |||
Pregnancy leave is protected under the ''Employment Standards Act'' and the ''Human Rights Code''. 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''. | |||
The employer may request a medical certificate to verify an anticipated birth date or the date of pregnancy termination. Pregnancy leave may commence up to 11 weeks prior to the estimated date of birth, and no later than the actual birth date of the child; it ends between 6 and 17 weeks after the actual birth date. To request pregnancy leave for a period shorter than six weeks following the birth of the child or termination of the pregnancy, an employee must provide one week written notice to the employer and may have to supply a medical certificate confirming the employee’s ability to return to work. Parental leave can begin at any time within one year of the birth or adoption of the child and need not conclude within that year; however, it must all be taken in one block. | |||
Pregnancy leave can be extended by six weeks with a doctor’s certificate outlining reasons related to the birth or termination. Parental leave can be extended by five weeks where the child has a psychological, physical, or emotional condition that requires such an extension. | |||
An employer has a duty to allow the employee the leave he or she requests under the provisions of the ''ESA''. Furthermore, upon the employee’s return from leave, the employer has a duty to place the employee in the same or comparable position to the position he or she held before the leave. The employer must not terminate employment because of leave taken, or change a condition of employment without the employee’s written consent. | |||
Maternity rights are being quickly developed by the courts. Supreme Court decisions such as ''Brooks v.Canada Safeway Ltd.'', [1989] 1 SCR, 1219, should be reviewed before giving advice to clients with this type of grievance. This case says that pregnancy, while not considered a sickness or accident, is a valid health-related reason for absence from work. | |||
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:V) | Section V: Remedies]] for further details. | |||
An employer can terminate the employment of a pregnant person if the termination is part of legitimate downsizing (s 54). | |||
==== b) Family Responsibility Leave ==== | |||
An employee is entitled to up to five days of unpaid leave each year to meet responsibilities related to the health of an immediate family member or the educational needs of a child in the employee’s care (''ESA'', s 52). These days need not be consecutive, and their use is not restricted to emergencies. They may be used for meetings about a child’s schooling, meetings with a social worker, or other similar commitments. | |||
==== c) Bereavement Leave ==== | |||
An employee is entitled to up to three days of unpaid leave on the death of a member of the employee’s immediate family (''ESA'', s 53). “Immediate family” is defined in the ''ESA'' as “the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee, and any person who lives with an employee as a member of the employee’s family.” | |||
==== d) Compassionate Leave ==== | |||
As of April 27, 2006 the ''ESA'' was amended to allow an employee to take up to eight weeks of unpaid leave to care for a family member who is gravely ill and faces a significant risk of death within 26 weeks (s 52.1). The employee must provide a certificate from a medical practitioner stating that the family member faces significant risk of death. The eight weeks do not have to be taken consecutively, but they must be used within the 26-week period. If the family member is still alive after 26 weeks but still gravely ill, a further eight weeks can be taken; however, a new medical certificate must be provided by a medical practitioner. While on compassionate leave the employment is considered to be continuous. An employer must not terminate the employee, or change the conditions of employment while an employee is on compassionate leave, unless they obtain their written consent to do so. An employee may also qualify for a maximum of six weeks of pay through Employment Insurance for compassionate leave. For more information please refer to [[Introduction to Employment Insurance (8:I) | Chapter 8: Employment Insurance]]. | |||
==== e) Jury Duty ==== | |||
An employee is entitled to unpaid leave to meet the requirements of being selected for jury duty (''ESA'', s 55). | |||
==== f) Reservists’ Leave ==== | |||
Under certain circumstances the ''ESA'' now allows unpaid leave for reservists in the Canadian Armed Forces (''ESA'', s 52.2). | |||
=== 10. Exceptions to the General Rule (Specialty Professions) === | |||
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''. Students should check the legislation directly, and any appropriate case law on the matter. | |||
==== a) Independent Contractors ==== | |||
See [[Preliminary Matters for Employment Law (9:III)#D. Determine if the Worker is an Employee or Independent Contractor | Section III.D: Employees vs. Independent Contractors]] to determine whether the worker in question is an employee or an independent contractor. The ''ESA'' applies only to employees. | |||
==== b) Commissioned Salespeople ==== | |||
Commissioned salespeople are entitled to most of the protection the ''ESA'' has to offer. Look carefully at ''ES Regulation'' s 37.14. They are entitled to receive at least minimum wage, unless they sell heavy industrial/agricultural equipment, or sailing/motor vessels. If a salesperson is entitled to minimum wage and the total commission falls short of that, the employer must make up the difference. | |||
The first issue to examine in the case of a commissioned salesperson is the terms of the employment contract. These will tell you when the commissions are to be paid. Employers are not bound to bi-weekly payment of commissions. However, even if the employee must wait for sales to be reconciled before being paid their commission, they must still be paid wages bi-weekly. | |||
==== c) Farm Labourers and Domestic Workers ==== | |||
The ''ESA'' has special provisions for farm and domestic labourers. See the Act and Regulation for more details. A domestic worker must have a written employment contract and be registered with the Employment Standards Branch (''ESA'', ss 14 and 15). The Employment Standards Branch is working in cooperation with federal immigration officials to curb abuses of the program. The federal agency will ensure that the employer is registered with the Branch before entry of a new immigrant is authorized. In 2002, under the banner of creating a more flexible workforce, the ''ESA'' was changed to exclude domestic and farm workers from certain overtime laws. Essentially domestic and farm workers can have their hours averaged without the need for consent (see above at [[{{PAGENAME}}#h) Averaging Agreements | Section IV.B.6(h): Averaging Agreements]]). | |||
Most migrant farm labourers will be paid in accordance with the amount of work produced, e.g. payment per weight of crop picked. While this is legal, it should be noted that hours must still be recorded, and payments made for the purpose of Employment Insurance. Abuses by employers in this area have been significant, and workers should be aware that the government may try to collect EI from their paycheques if it is not reported. | |||
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