On April 29, 2019, the British Columbia government tabled Bill 8, Employment Standards Amendment Act, 2019 to significantly update the Employment Standards Act and incorporate some recommendations from the BC Law Institute, as well as from the BC Employment Standards Coalition, the BC Federation of Labour and feedback from workers, employers and the public. Further recommendations from these reports will be considered at a later date and proposed legislation tabled.
The ESA has not been significantly updated for 15 years and there are several areas where changes are needed and overdue. However, the government will be implementing the updates in stages and Bill 8 is the first step.
According to the government, the proposed ESA amendments in Bill 8 touch on four priority areas of employment standards, with changes to:
- better protect children and youth from dangerous work;
- make it easier for workers to get help when they feel their rights have been violated;
- provide more job protection to people dealing with difficult personal circumstances; and
- ensure people are paid the wages they are owed – and that those who violate the law do not have an unfair economic advantage.
The key amendments found in Bill 8 include:
1. Youth employment
The government will raise the age a child may work from 12 to 16 years of age, and better protect the safety of children 16 to 18 years old by putting tough restrictions on the type of hazardous work they can be asked to perform.
Amendments will provide exemptions that allow 14 and 15 year olds to perform light work that is safe for their health and development (such as stocking shelves at a grocery store) with the child’s parent or guardian’s written permission. If employing a person under the age of 14, the employer must have the director’s permission. If the person is 14 or 15 years old and performing any work other than light work, the employer must have the director’s permission before the person can be hired.
“Light work” means prescribed work or a prescribed occupation that the Lieutenant Governor in Council considers is unlikely to be harmful to the health or development of a child who is 14 or 15 years old.
In addition, a person must not employ a child who is under 16 years of age in a hazardous industry or in hazardous work, or who is at least 16 years of age but under 19 years of age in a hazardous industry or in hazardous work, unless the child has attained the prescribed age in respect of the hazardous industry or hazardous work.
An employer must comply with the conditions of employment set by the director.
“Hazardous industry” means a prescribed industry that the Lieutenant Governor in Council considers is likely to be harmful to the health, safety or morals of a person under 16 years of age.
“Hazardous work” means prescribed work that the Lieutenant Governor in Council considers is likely to be harmful to the health, safety or morals of a person under 16 years of age.
The existing regulations that allow children to work in recorded and live entertainment with parental consent will be maintained.
2. New job-protected leaves
Critical illness and injury leave: The amendments will add critical illness or injury leave under the Employment Standards Act to provide care or support to a family member if a medical practitioner or nurse practitioner issues a certificate, which includes:
- up to 36 weeks of unpaid leave to provide care or support to a family member who is under 19 years of age at the start of the leave; and
- up to 16 weeks of unpaid leave to provide care or support to a family member who is 19 years of age or older.
Leave respecting domestic violence: An eligible person who experiences domestic violence can receive up to 10 non-consecutive days of unpaid job-protected leaves in each calendar year (to be taken in units of one or more days or in one continuous period) and up to 15 weeks of consecutive unpaid leave (to be taken as one unit of time, or more than one unit of time, with the employer’s consent.) If requested by the employer, the employee must, as soon as practicable, provide the employer with reasonably sufficient proof in the circumstances that the employee is entitled to the leave.
“Eligible person” means, with respect to an employee:
- a child who is under the day-to-day care and control of the employee by way of agreement or court order or because the employee is the child’s parent or guardian;
- a person who is 19 years of age or older, and is unable, because of illness, disability or another reason, to obtain the necessities of life or withdraw from the charge of the person’s parent or former guardian;
- is under the day-to-day care and control of the employee, who is the person’s parent or former guardian; and
- a prescribed person by regulation.
An employee is not entitled to domestic leave if the employee commits the domestic violence against the eligible person.
3. Tips and gratuities
The amendments establish a legal framework for regulating tips and tip pooling and protecting workers’ rights with respect to tips and gratuities.
An employer must not:
- withhold gratuities from an employee;
- make a deduction from an employee’s gratuities; or
- require an employee to return or give the employee’s gratuities to the employer.
The above rules do not apply if an employer is authorized or required under a law of British Columbia or Canada or by a court to withhold gratuities from an employee, make a deduction from an employee’s gratuities or require an employee to return or give the gratuities to the employer. This exemption does not apply if the law or court requires the employer to remit the gratuities to a third party and the employer fails to do so.
If an employer contravenes the tips and gratuities rules, the amount withheld or deducted from the employee or required to be returned or given by the employee to the employer is a debt due to the employee and may be collected by the director in the same manner as wages.
- a payment voluntarily made to, or left for an employee by a customer of the employee’s employer in circumstances in which a reasonable person would be likely to infer that the customer intended or assumed that the payment would be kept by the employee or shared by the employee with other employees;
- a payment voluntarily made to an employer by a customer in circumstances in which a reasonable person would be likely to infer that the customer intended or assumed that the payment would be redistributed to an employee or employees;
- a payment of a service charge or similar charge imposed by an employer on a customer in circumstances in which a reasonable person would be likely to infer that the customer intended or assumed that the payment would be redistributed to an employee or employees; and
- other payments as may be prescribed in regulation.
But, gratuity does not include:
- payments as may be prescribed; and
- charges as may be prescribed relating to the method of payment used, or a prescribed portion of those charges.
An employer may withhold gratuities from an employee, make a deduction from an employee’s gratuities or require the employee to return or give the gratuities to the employer if the employer collects and redistributes gratuities among some, or all of the employer’s employees. An employer must not redistribute gratuities among prescribed employees or classes of employees.
An employer, a director or a shareholder of an employer may not share in gratuities that are redistributed.
An employer who is a sole proprietor or a partner in a partnership may share in gratuities that are redistributed if the employer regularly performs, to a substantial degree, the same work performed by some or all of the employees who share in the redistribution, or employees of other employers in the same industry who commonly receive or share in gratuities.
A director or shareholder of an employer may share in gratuities that are redistributed if the director or shareholder performs, to a substantial degree, the same work performed by some or all of the employees who share in the redistribution, or employees of other employers in the same industry who commonly receive or share in gratuities.
4. Record keeping
The amendments extend the length of time employers must keep certain records.
Section 25 (b) requires the employer to reimburse, in accordance with the agreement, each employee bound by the agreement for the cost of cleaning and maintaining the special clothing. Sec. 25 (c) states that such agreement and amounts reimbursed must be kept for two years. Amendments increase the two year period to four years.
Section 28 (2) (c) requires the employer to keep payroll records for two years after the employment terminates. Amendments increase that period to four years after the date on which the payroll records were created.
Amendments also extend the length of time an employer must retain an averaging agreement under section 37 of the Employment Standards Act. An employer will be obliged to retain an averaging agreement for four years after the following, as applicable:
a) the expiry date set out in the averaging agreement, unless paragraph (b) applies;
b) the expiry date set out in one or more agreements to repeat the averaging agreement, whichever date is the latest.
The amendments also extend the length of time an employer must retain records of agreements to substitute another day for a statutory holiday from two years to four years.
5. Informing employees of their rights
An employer must make available or provide to each employee, in a form provided or approved by the director, information about the rights of the employee under the Employment Standards Act.
6. Assignment of wages
An employer may honour an employee’s written assignment of wages to meet any of the following credit obligations:
- an advance of wages to the employee from the employer, including vacation pay;
- an outstanding balance in respect of the purchase of goods or services from the employer by the employee; or
- an outstanding balance in respect of the personal use of real and personal property of the employer by the employee.
7. Clarification regarding the application of subsection (4) in reinstatement after leave
Section 54 (4) of the ESA states that “if the employer’s operations are suspended or discontinued when the leave ends, the employer must, subject to the seniority provisions in a collective agreement, comply with subsection (3) as soon as operations are resumed. Amendments in Bill 8 clarify that subsection (4) is not to be construed as conferring a preferential right of recall on an employee, to whom a collective agreement does not apply, beyond that to which the employee would otherwise be entitled.
Bill 8 amendments also set out the employer’s liability if the employee gives notice of termination and the employer terminates the employment during that period by adding the following subsection:
(6) If, after three consecutive months of employment, an employee gives notice of termination to the employer and the employer terminates the employment during that notice period, the employer is liable to pay the employee an amount equal to the lesser of:
(a) an amount in money equal to the wages the employee would have earned for the remainder of the notice period; or
(b) an amount in money equal to the amount the employer is liable to pay on termination.
8. Collective agreements
Amendments make collective agreement provisions subject to the minimum requirements of the Employment Standards Act.
9. Investigations, complaints and determinations
Amendments eliminate the self-help kit as a required step before filing a complaint. Instead, British Columbia will have an effective complaints process in place to support fair and objective enforcement of employment standards.
The Employment Standards Branch is responsible for handling complaints concerning alleged contraventions of the Employment Standards Act. This may include payment for hours worked and overtime when earned. Section 74 of the Employment Standards Act sets out how the director must deal with complaints delivered to the director of the Employment Standards Branch. The amendments will require the director of the Employment Standards Branch to accept and investigate all complaints – improving on the current process of forgoing needed investigations in favour of speedy resolutions. The director may also at any time, and for any reason, conduct an investigation to ensure compliance with the ESA and the regulations and stop or postpone the investigation.
Upon accepting a complaint, the complaint is sent to the director of the corporation who will be required to review the complaint and make a decision about whether any of the circumstances described apply to the complaint.
If the director of the corporation takes no action, the director of the Employment Standards Branch must investigate the complaint, and this investigation may involve an alternative dispute resolution process. If the director of the Employment Standards Branch decides that the complaint may relate to employees other than the employee who made the complaint, the director may:
- refuse to investigate the complaint or stop or postpone investigating the complaint; and
- conduct a broader investigation that addresses the subject matter of the complaint.
The director of the Employment Standards Branch must refuse to accept a complaint if the complaint is not made within the applicable time period required.
After completing the investigation of a complaint, the director of the Employment Standards Branch must summarize his or her findings in a written report and serve a copy of the written report on the person who made the complaint; the person against whom the complaint was made and any person the director considers should have the opportunity to respond to the report.
Section 78 authorizes the director of the Employment Standards Branch to enter into settlement agreements.
Amendments extend the recovery period for which workers can recover owed wages from their employer from six months to 12 months – with the possibility of extending the period to 24 months under some circumstances, such as in cases involving wilful or severe contraventions of the ESA.
10. Farm labour contractors
Farm labour contractors must be licensed. A person must not act as a farm labour contractor unless the person is licensed under the Employment Standards Act.
A producer must not engage the services of a farm labour contractor unless the farm labour contractor is licensed.
Amendments clarify that a person who engages the services of an unlicensed farm labour contractor is deemed to be the employer of each employee who performs work on behalf of the person.
11. Temporary help agencies
Operators of temporary help agencies must be licensed. A person must not operate a temporary help agency unless the person is licensed under the Employment Standards Act.
If a person engages the services of a temporary help agency and the operator of the temporary help agency is not licensed under the ESA, the person is deemed, for the purposes of the ESA to be the employer of each employee of the temporary help agency who performs work on behalf of the person.
Impact of the changes on employers
Employers will need to comply with the above changes by reviewing and adjusting several of their HR practices and policies including student employment and statutory leaves. Temporary help agencies and farm labour contractors will have to prepare to go through the licensing process that will be established by the government to continue operations.