British Columbia Employment Standards Reforms Coming

On December 10, 2018, the British Columbia Law Institute (BCLI) released its final report on their independent Employment Standards Act review. The British Columbia labour minister responded to the report by pledging action in 2019 to implement certain of the 71 recommendations found in the BCLI final report.

Background

In 2014, the British Columbia Law Institute (BCLI) initiated a three-year review of the Employment Standards Act to examine if employment legislation has kept up with the recent boom in precarious work, and to improve workers’ rights and modernize employment standards in the province.

As a result, the BCLI is recommending reforms to the provincial Employment Standards Act (ESA), which sets minimum standards for terms of employment and working conditions in British Columbia and provides for their enforcement.

In addition to its 71 recommendations, the report indicates that the province’s legislation on employment standards is out of date and doesn’t reflect the pressures people face in the modern workplace. The paper noted that the ESA, which was first brought into force in the 1970s, has not had a major independent review in two decades and in the time since patterns of work and the nature of the workplace have evolved.

More on the report, consultation paper among other data can be found here.

Recommendations

The recommendations deal with a range of issues from serving the needs of vulnerable workers to hours of work, leaves and wages. In addition, it noted that the purpose of the report was not to outline a specific course of action for government to follow but to offer a range of options to be considered, backed up with research. This is to prevent what happened in Ontario, where the changes are so drastic that one government brings in changes and the next government moves to undo many of them.

British Columbia’s Labour Minister Harry Bains is reviewing the report and said, updating BC’s employment standards is “one of my main priorities—making sure our standards are applied evenly, enforced and reflect the changing needs of today’s workplaces.”

On page 307 of the report, a list of the 71 recommendations the British Columbia government may consider with the pages where the recommendations are discussed in the report is provided and reproduced below:

1. The ESA should not be extended to apply to independent contractors. [p.28]

2. The ESA should not contain a definition of “dependent contractor” or distinguish between employees and dependent contractors. [p. 34]

3. The ESA should continue to specifically address vulnerable categories of employees.
[p.35]

4. The ESA should not supplant or supplement the common law regarding wrongful dismissal, or provide for the administrative adjudication of wrongful dismissal claims, except as now provided in relation to contraventions of section 83(1). Majority [p. 37]

4a. The ESA should address wrongful dismissal and provide an administrative adjudication process for wrongful dismissal claims. Minority [p. 38]

5. Principles should be developed to govern future applications for exclusion of an industry, activity, occupational group, or class of workers from all or part of the ESA in
order to ensure that the interests of employers and employees are fully taken into account. [p. 47]

6. Existing exclusions from ESA standards should undergo a systematic review by government to determine whether they continue to be justified. [p. 47]

7. The ESA should allow one or more alternate standard patterns of working hours within the 40-hour week in addition to the standard of 8 hours per day, and require a notice period for a change from one standard alternate pattern to another. Majority
[p. 55]

7a. A pattern of working hours for a workplace other than the standard of eight hours per
day, 40 hours per week should require worker consent by means of an averaging
agreement. Minority [p. 55]

8. The definition of “week” in section 1 of the ESA should be amended to allow an employer to designate the day on which the period of seven consecutive days begins for the purpose of wage calculation and employee benefits under the Act, provided that the employer must:
(a) follow a consistent practice following the designation; and
(b) provide adequate notice to affected employees of any subsequent re-designation of the beginning day of the seven-day period. [pp. 56–57]

9. The ESA should continue to have a provision on averaging of working hours. [p.66]

10. The current section 37(2)(a)(iv)—requiring an averaging agreement to specify the work schedule for each day covered by the agreement—should not be carried forward into an averaging provision replacing the present section 37. [p. 66]

11. An averaging provision replacing the present section 37 should provide that:
(a) an averaging agreement may have a term of up to two years, subject to renewal within the term;
(b) the period over which hours of work may be averaged for purposes of overtime must
not exceed eight weeks; [majority] [minority: a period less than eight weeks]
(c) the number of working hours per day within an averaging period must not exceed 12
unless overtime is paid for hours worked in excess of 12 in any one day;
(d) the number of working hours per week within an averaging period must not exceed 48 unless overtime is paid for hours worked in excess of 48 in any one week;
(e) if a layoff occurs during an averaging period, the laid-off employee is entitled to be
paid overtime for hours worked in excess of eight on any day in that period, rather than on an averaged basis over the length of the averaging period in which the layoff
occurs;
(f) the Director may terminate an averaging agreement on application by the employer or affected employees if the Director is satisfied that hardship would otherwise result. [p. 67]

12. The threshold of employee approval for an averaging agreement should be an affirmative vote of 60 percent of the affected employees who vote, with a minimum of 50 percent of the affected employees having voted. [p. 67]

13. A method used for a vote by employees on whether to approve an hours of work averaging agreement must be capable of assuring confidentiality (voting anonymity) and fairness. [p. 67]

14. The ESA should be amended to provide that:
(a) an employee may decline to work outside the employee’s scheduled hours of
work if doing so would:
(i) conflict with significant family related commitments that the employee
cannot reasonably be expected to alter or avoid;
(ii) interfere with scheduled educational commitments or with appointments or procedures in connection with professional health care;
(iii) create a scheduling conflict with other employment;
(b) an employee may decline to work more than 12 hours in a day or 48 hours in
a week except in the event of an emergency, or as otherwise provided in an
applicable regulation, variance or averaging agreement. [p. 71]

15. The ESA should be amended to contain a definition of “emergency” or “emergency
circumstances” that would justify exceeding statutory limits on hours of work to the extent necessary to prevent serious interference with the ordinary operations of the employer, in cases of:
(a) accident to machinery, equipment, plant or persons;
(b) urgent and essential work to be done to machinery, equipment or plant;
(c) a significant present or impending threat to human life, health, or safety, or extensive or irreparable damage to property;
(d) urgent and essential work needed to assist customers of the employer facing circumstances described in paragraphs (a) to (c); or
(e) other unforeseen or unpreventable circumstances. [p. 71]

16. The ESA should be amended to require that if an employee is required to report for
work, and the employee is scheduled to work
(a) more than four hours on the day in question, the employee must receive a minimum
of four hours’ pay if work starts, and a minimum of two hours’ pay if it does not;
(b) less than four hours on the day in question, the employee must receive a minimum
of two hours’ pay, regardless of whether work starts or not;
unless the employee is unfit to work or fails to comply with Part 3 of the Workers’ Compensation Act, or a regulation under Part 3 of that Act. [p. 74]

17. If a provision is enacted in the ESA that authorizes an employee to make, and an
employer to grant, a request for a flexible work schedule to accommodate a need of the
employee, the provision should extend only to hours of work and scheduling of work,
but not to the location of work. [p. 82]

18. The ESA should be amended to allow an employee to voluntarily work up to a total
of three hours spread over one or more days in the same pay period without the employer being required to pay an overtime rate for those hours, in order to make up for
time which the employee has taken off in that pay period. [p. 83]

19. Section 32 should be amended to clarify that section 32(2) does not relieve an employer of the obligation to ensure meal breaks are provided as required by section 32(1), and applies when it is necessary to interrupt a meal break because of an emergency or other exceptional circumstance. [pp. 84-85]

20. The ESA should be amended to restore a provision requiring 24 hours’ notice to employees of a change to a shift or work schedule unless the change:
(a) will entitle the employees to overtime pay;
(b) is an extension of a shift prior to the end of the shift; or
(c) must be made with less than 24 [minority: 48] hours’ notice because of unforeseen
circumstances. [p. 89]

21. The ESA should be amended to provide that an employee who does not receive a
minimum of 24 hours’ notice as required by Recommendation 20 may refuse to report
for work according to the altered schedule at the start of the next shift or workday after the change in shift or work schedule takes effect. [p. 89]

22. The ESA should be amended:
(a) by deleting the words “if authorized by the employee in writing or by a collective
agreement” from section 20(c); and
(b) to authorize an employer, notwithstanding the Personal Information Protection
Act
and the Freedom of Information and Protection of Privacy Act, to collect, use
and disclose personal information regarding the employee’s banking arrangements without having to first obtain the employee’s consent for the purpose of the
direct deposit of the employee’s wages into the employee’s account in a savings institution. [p. 94]

23. Section 22(1)(d) of the ESA should be amended by deleting “insurance company”
and substituting “benefits provider.” [p. 98]

24. The ESA should be amended to permit an employee to make an irrevocable written
assignment of wages for the purpose of repaying an advance from the employer. [p. 100]

25. Section 22(4) of the ESA should be repealed. [p. 100]

26. Provisions on tips and gratuities corresponding in substance to Part V.1 of the Ontario Employment Standards Act, 2000 should be added to the ESA. [p. 104]

27. Section 58(2) of the ESA should be amended to permit employers to select one of the
following methods of paying vacation pay:
(a) paying the employee’s salary throughout the vacation period;
(b) adding 4 percent or 6 percent vacation pay, as applicable, to each paycheque or
direct deposit of wages, subject to later adjustment if necessary to ensure that the
aggregate of instalments of vacation pay equate to 4 percent or 6 percent of an
employee’s total wages, as applicable;
(c) paying vacation pay in a lump sum a week before the employee’s vacation begins.
[p. 106]

28. The ESA should be amended to provide that:
(a) in order to be eligible to receive statutory holiday pay, an employee must have
worked or earned wages on (i) 16 of the 60 days preceding the statutory holiday, and
(ii) the last day before the holiday and the first day after the holiday on which the
employee was scheduled to work;
(b) a day on which the employee is absent because of illness or has permission from
the employer to be absent is not to be counted as a scheduled working day for that employee for the purposes of subparagraph (ii) of paragraph (a) of this recommendation.
[p. 115–116]

29. The ESA should be amended to:
(a) provide a formula for indexation of the minimum wage at regular, fixed intervals, and
(b) require the Lieutenant Governor in Council to determine, on each occasion
when the ESA requires the formula to be applied, whether to amend the regulation prescribing the minimum wage to prescribe the rate as indexed according to the formula or a different rate chosen by the Lieutenant Governor in
Council. Majority [pp 126–127]

29a. The ESA should be amended to provide for a review at five-year intervals of the
provisions governing how the minimum wage is set. Minority also endorsing Recommendation 29 [p. 127]

29b. The ESA should be amended to require the Lieutenant Governor in Council to review the minimum wage at two-year intervals and determine whether it should be
changed or left unchanged. No other amendments should be made to the minimum
wage provisions of the ESA. Minority not endorsing Recommendation 29 [p. 127]

30. (a) The ESA should be amended to require that workers who may be paid on a piece
rate basis must receive at least the equivalent of the general hourly minimum
wage.
(b) Implementation of paragraph (a) of this recommendation should be suspended until an expert committee appointed by the minister responsible for
the administration of the ESA has reported on appropriate measures for its
implementation. [pp. 139–140]

31. The initial amount of security that a farm labour contractor must provide to the
Director under section 5(3)(c) of the Employment Standards Regulation should be increased to the amount obtained by multiplying the minimum hourly wage by 120, and
multiplying the result by the number of employees specified in the licence. The decreasing multipliers applicable in respect of subsequent periods of non-contravention should
be adjusted correspondingly. [p. 145]

32. The ESA should be amended to enable the Director to prohibit anyone whose farm
contractor licence has been cancelled for non-compliance with the ESA and regulations
from re-applying for a licence for a specific period, or permanently.

33. No change to section 30(2) is necessary. Majority [p. 145]
33a. Section 30(2) should be repealed. Minority [p. 145]

34. Annual vacation entitlements under section 57(1) of the ESA should remain unchanged. Majority [p. 152]

34a. Section 57(1) of the ESA should be amended to provide that an employee becomes
entitled to an annual vacation of four weeks after 10 consecutive years of employment.
Minority [p. 152]

35. The ESA should be amended to clarify that section 54(4) does not entitle non-unionized employees whose leaves end during a period when the employer’s operations
are suspended to be recalled in preference to other non-unionized employees. [p. 156]

36. The definition of “immediate family” in the ESA should be amended to include a parent or a child of the employee’s spouse. Majority [p. 168]

36a. In addition to the classes of persons referred to in Recommendation 36, a grandparent of the employee’s spouse should be included in the definition of “immediate family.” Minority [p. 168]

36b. An uncle or aunt of an employee or the employee’s spouse should be included in the definition of “immediate family” in addition to the classes of persons referred to in Recommendation 36 and the minority Recommendation 36a. Minority [p. 168]

36c. The definition of “immediate family” in the ESA should remain unchanged.
Minority [p. 168]

37. The ESA should be amended to include a provision stating that an employer may
require an employee to provide evidence, reasonable in the circumstances, of the employee’s entitlement to take a non-discretionary form of leave provided under the ESA.
This provision should be expressly subject to other provisions concerning justification
for a non-discretionary leave. [pp. 170–171]

38. The ESA should not be amended to add new non-discretionary leave entitlements.
Majority [p. 177]

38a. The ESA should be amended to harmonize non-discretionary leave entitlements
under Part 6 of the ESA with the range of circumstances in which special unemployment benefits are payable under the Employment Insurance Act (Canada) for care to
a critically ill family member. Minority [p. 177]

39. The ESA should be amended to supplant the present section 52 (family responsibility
leave) with a provision allowing a total of up to seven days of unpaid leave per calendar year
which could be taken by reason of:
(a) the employee’s own illness or injury, or
(b) a family responsibility, namely a need to attend to the care, health, or education of
a child in the employee’s care, or the care or health of a member of the employee’s
immediate family. Majority [p. 187]

39a. The number of unpaid leave days per calendar year in Recommendation 39 should
be 10. Minority [p. 187]

39b. The number of leave days per year in Recommendation 39 should be 10, and days
of leave taken because of the employee’s own illness or injury should be paid at the employee’s regular wage. Minority [p. 187]

39c. The ESA should not be amended to introduce sick leave, but if Recommendation
39 is implemented, the number of unpaid leave days per year should be seven.
Minority [p. 188]

40. A reasoned dialogue involving the health professions, major employers’ organizations and major organizations representing organized and unorganized labour should
take place regarding medical certificates to justify absence from work due to illness
(“sick notes”) with a view to developing mutually acceptable guidelines. [p. 192]

41. Three months’ continuous employment with the same employer should be a minimum requirement of eligibility for any form of statutory leave of absence other than
annual vacation, leave for jury duty or reservist leave. Majority [p. 194]

41a. Three months’ continuous employment with the same employer should be a minimum requirement of eligibility for maternity, parental or compassionate care leave.
Minority [p. 194]

41b. An employer should be entitled to restrict paid sick leave to employees who have
been continuously employed for at least three months, but unpaid personal illness or
family responsibility leave as contemplated by Recommendation 39 should be available
to employees regardless of length of employment. Minority [p. 194]

41c. There should be no qualifying period of employment for a non-discretionary statutory leave of absence. Minority [pp. 194–195]

42. A notice of termination validly given to an employee should not be rendered invalid
by reason only that the employee is allowed to work for up to one month after the end
of the notice period. Majority [p. 205]

42a. A notice of termination should continue to be void under section 67(1)(b), as it
now stands, if an employee is allowed to work beyond the end of the notice period.
Minority [p. 205]

43. The ESA should be amended to expressly clarify that if an employer terminates an
employee following a notice of intention to quit given by the employee, the employer is
required to pay the employee the lesser of:
(a) the amount of wages the employee would have earned during the rest of the
period of notice the employee gave to the employer; and
(b) the amount that would be payable to the employee as compensation for length
of service if the employee had been terminated without notice. [p. 206]

44. The group termination provisions of the ESA should be amended to allow an employer’s obligations to affected employees to be satisfied through a combination of notice and termination pay, whether or not the employer has given the required notice to the Minister within the required timeframe. [p. 207]

45. No change or review is required in relation to section 65(1)(e) of the ESA. Majority [p. 208]

45a. Section 65(1)(e) of the ESA should be repealed. Minority [p. 208]

46. Employment of persons under 16 in industries or occupations prescribed by regulation as being likely to be injurious to their health, safety or morals should be prohibited. [p. 222]

47. The ESA should be amended to confer authority to:
(a) designate by regulation industries and occupations likely to endanger the
health, safety or morals of persons under 16; and
(b) set a minimum age between 16 and 19 for employment in any one or more of
the said industries and occupations. [p. 222]

48. The special regime for employment of children in recorded and live entertainment under Part 7.1, Divisions 2 and 3 of the Employment Standards Regulation should be retained. [p. 222]

49. The ESA should be amended to:
(a) require a permit from the Director to employ a child below the age of 14,
except for employment with parental consent in recorded and live entertainment;
(b) allow employment at age 14 and 15
(i) with parental consent in:
(A) an artistic endeavour (including recorded and live entertainment); or
(B) forms of “light work” designated by the Director and listed on the Employment Standards Branch website;
(ii) with a permit from the Director, in cases other than those mentioned in
subparagraph (i). majority [p. 222]

49a. The ESA should be amended to prohibit the employment of anyone under 15 years
of age without a permit from the Director, except as allowed by the regulations applicable to employment of children in recorded and live entertainment.
Minority [p. 222]

50. The definition of “domestic” in the ESA should be amended by repealing the requirement to reside at the employer’s residence. [p. 230]

51. The definition of “residential care worker” in the Employment Standards Regulation should be amended by deleting the words “or family type residential dwelling” in paragraph (a) of the definition. [p. 232]

52. The definition of “sitter” in the Employment Standards Regulation should be amended to read as follows:
“sitter” means a person employed in a private residence solely to provide the service
of attending to a child or adult for an average of not more than 15 hours per week in
any period of four weeks, but does not include a nurse, domestic, therapist, live-in home
support worker or an employee of:
(a) a business that is engaged in providing that service, or
(b) a day care facility;
Majority [p. 236]

52a. The definition of “sitter” in the Employment Standards Regulation should be
amended to read as follows:
“sitter” means a person employed in a private residence solely to provide the service
of attending to a child or adult for not more than 15 hours per week, but does not include a nurse, domestic, therapist, live-in home support worker or an employee of:
(a) a business that is engaged in providing that service, or
(b) a day care facility;
Minority [p. 236]

53. The ESA should continue to confer authority on the Director to carry out investigations to ensure compliance with the Act, whether or not a complaint of a contravention has been made. [p. 252]

54. Use of the self-help kit by an employee should not be a prerequisite to the receipt, review, investigation, mediation or adjudication of a complaint by or on behalf of the employee that the ESA has been contravened. [p. 254]

55. The relationship between sections 76(1) and 76(3) should be clarified by restoring language that imposes a requirement to conduct a threshold investigation on intake, without limiting the discretion of the Director contemplated by Recommendation 56 over the procedure subsequent to the threshold investigation. [p. 258]

56. The ESA should:
(a) specify a full range of procedural alternatives available to the Director to resolve complaints, including investigation, informal dispute resolution and adjudication;
(b) set out the procedural steps associated with each alternative; and
(c) allow a complaint to be transferred from one alternative procedure to another
in the course of being resolved, as the Director considers appropriate. [p. 259]

57. The ESA should require that:
(a) the findings made in the investigation of a complaint be summarized in a report to the Director;
(b) copies of the report referred to in paragraph (a) must be provided to the employer and the complainant;
(c) each party must be given an opportunity to respond to the investigation report
within a specified time; and
(d) the responses of the parties must be considered together with the investigation
report in making a determination. [p. 261]

58. A determination should be a decision of the Director, or a delegate of the Director
other than the investigator on whose findings the determination is based. [p. 261]

59. The ESA should clearly permit a complaint to be filed on behalf of another person
with the written authorization of the person who is the subject of the complaint. Majority [pp. 262–263]

59a. Under Recommendation 59, the Director should have the discretion to dispense
with the requirement for written authorization for the complaint by the employee on
whose behalf it is made. Minority [p. 263]

60. The ESA should be amended to provide that a complaint based on a contravention
of section 10 must be delivered within the shorter of six months from the last day of employment and two years from the date of the contravention. [p. 267]

60a. Section 74(4) of the ESA should be amended to provide that a complaint based on
a contravention of sections 8, 10 or 11 must be delivered within two years of the date of
the contravention. Minority [pp 267–268]

61. The maximum amount of wages that a determination may require an employer to
pay under section 80(1) of the ESA should remain unchanged, except with regard to contraventions of section 10, as stated in Recommendation 62. Majority [p. 272]

61a. The maximum amount of wages a determination may require an employer to pay
should be the amount that became payable in a period beginning:
(a) 12 months before the earlier of the date of a complaint or the termination of
employment, if the determination is made in respect of a complaint; and
(b) in other cases, 12 months before the director first informed the employer of the
investigation resulting in the determination. Minority [p. 272]

Plus interest on the amount, in either case.

62. The ESA should be amended to provide that payments collected in contravention of section 10 may be recovered as deemed wages if they were paid not more than two years
(a) before a complaint concerning the contravention is filed, or
(b) in other cases, before the Director first informed the employer or other person alleged to have contravened section 10 of the investigation resulting in the determination. [p. 273]

63. The ESA and the regulations should be amended to:
(a) confer discretion on the Director to waive an administrative penalty following a determination that a requirement of the Act or a regulation has been contravened, and to set out criteria for exercise of the discretion;
(b) expressly recognize payment in full by an employer of a wage claim, as quantified by the Employment Standards Branch, as:
(i) a ground for concluding a complaint based on the wage claim; and
(ii) a sufficient ground for waiver of an administrative penalty in respect of the wage claim; and
(c) provide that a rational basis for contesting a complaint should be a sufficient ground for exercise of the discretion not to impose an administrative penalty. Majority [p. 275]

63a. The administrative penalty provisions of the ESA and regulations should not be altered pending the enunciation of a policy basis for a system of administrative penalties, except as stated in Recommendation 64. Minority [pp. 275–276]

64. The amount of an administrative penalty should be subject to being increased, subject to a specified maximum, on a discretionary basis by reason of the gravity of the contravention, according to criteria which should be set out in the ESA. [p. 276]

65. The model of workers’ and employers’ advisers under the workers’ compensation scheme should be examined with a view to its possible adaptation for the representation of otherwise unrepresented parties in appeals to the Employment Standards Tribunal. [p. 283]

66. The ESA should be amended to clarify that a demand on a third party under section 89 may include interest accrued under section 88 that is included in the determination on which the third party demand is based. [pp. 290–291]

67. Section 96(2) of the ESA should remain unchanged. Majority [p. 296]

67a. Section 96(2)(b) of the ESA should be repealed, and section 92(2)(a) should be restored as it stood before the enactment of section 96(2)(b). Minority [p. 296]

68. Definitions of “director” and “officer” should be added to the ESA which draw upon the definitions of “director” and “senior officer” in the Business Corporations Act, and possibly also upon corresponding definitions in the Societies Act and federal corporate legislation. [p. 297]

69. Section 96 should be amended to provide expressly for rights of contribution and subrogation for directors and officers who satisfy wage liabilities of the employer. [p. 298]

70. Section 97 of the ESA should be amended by deleting the words “or a substantial part of the assets” to correspond with the successor employer provision (section 35[1]) in the Labour Relations Code. [p. 302]

71. Section 97 of the ESA should be amended by adding the operation of a business under a receiver or receiver-manager as a circumstance in which the employment of an employee of the business is deemed to be continuous for the purposes of the Act. [p. 304]

Last word

The recommendations are significant and extensive. And we are already seeing employer and business associations running scared.

As stated in the report, the BCLI hopes that the government will implement the changes in a way that will allow them not to be repealed in the future by a change in government. This includes implementing the changes in phases or allowing employers enough time to adjust to, and implement, the changes.

The Minister of Labour, Harry Bains, at the annual BC Federation of Labour Convention stated that legislation will be introduced in the upcoming spring 2019 session to revamp the ESA.

No matter how the changes are formulated or implemented, these recommendations may result in significant amendments to the ESA and implications to employers and require substantial changes to existing HR and payroll policies.

Erratum: The original version of the article referred to the British Columbia Law Institute (BCLI) ESA review report as a report resulting from the British Columbia government’s ESA review. This statement is an error and I apologize. The British Columbia Law Institute initiated their own independent review on the Employment Standards Act in 2014 and the report published on December 10, 2018, stems from that project. This article has been corrected accordingly.

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