Canada: Summary Of Changes To The B.C. Employment Standards Act

On May 30, 2019, the Provincial Government passed changes to the B.C. Employment Standards Act (the "ESA"). The ESA is the law that sets minimum standards for workplaces in the province, and has not been significantly updated for 15 years. The changes are overwhelmingly employee-friendly.

Some provisions do not come into force until future regulations are implemented, so it is important to seek legal advice if you are concerned about a particular change.

The following is a summary of some of the most notable changes:

Stronger child employment protections

• Children under the age of 14 may not work at all without the Director of Employment Standards' permission. Children who are 14 or 15 may only perform "light work" with a parent or guardian's consent. "Light work" will be defined in future regulations, but is work that is unlikely to be harmful to the health of development of a child.
• Children under 16 may not work in a "hazardous industry" or perform "hazardous work". Children aged 16-18 may only work in a "hazardous industry" or perform "hazardous work" if permitted by regulations. What is "hazardous" will be defined by regulations.

Licensing of Farm Labour Contractors and Temporary Help Agencies

• Farm labour contractors and temporary help agencies must be licensed.
• If a person engages an unlicensed farm labour contractor or temporary help agency, that person is deemed to be the employer of the contractor or agency's employees for the purposes of the ESA (and therefore liable for wages, termination pay, etc.)

Expanded job-protected leaves

There are new leaves respecting domestic or sexual violence and leave for critical illness or injury.

• Each calendar year, employees are entitled to 10 consecutive days (or non-consecutive days, at the employee's option) of unpaid job-protected leave, plus up to 15 consecutive weeks (or non-consecutive weeks, with the employer's consent) of unpaid leave for domestic or sexual violence. The leave must be used to seek medical attention, victim or social services assistance, counselling, relocation, or legal assistance.

• Employees are entitled to up to 36 weeks of unpaid leave to provide care and support to a child (under 19) whose life is at risk, or up to 16 weeks for an adult (19 or older) whose life is at risk. The leave must be taken in periods of one or more weeks.

Tips and Tip Pools

• Employers may not withhold tips, or deduct from tips, or require an employee to pay any part of a tip to the employer, except as required by law such as for income tax withholding or garnishing orders.
• Tip pooling is permitted, so long as the pool is distributed to employees only and not to employers, directors or shareholders.
• Sole proprietors, partners, directors or shareholders may participate in tip pools, but only when they perform the same work as employees (this is likely intended to capture small businesses).
• This is very similar to the law in Ontario.

Immediate family expanded

• The definition of "immediate family" now includes the child or parent of the employee's spouse. This is relevant for family responsibility leave, compassionate care leave, and bereavement leave.

Improved wage recovery

• The legislation also extends 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 to be prescribed by regulation, such as in cases involving wilful or severe contraventions of the act.
• Employees may be permitted to submit a complaint more than 6 months after their last day of employment or the date of the contravention if special circumstances existed that precluded the delivery of the complaint earlier.

Terminating employment after notice of resignation

• If an employee gives notice of resignation, and the employer terminates employment during the resignation notice period, the employer must pay the lesser of: (a) wages for the balance of the resignation notice period, or (b) ESA-required termination pay.
• This change formalizes the long-standing interpretation of the Employment Standards Branch.

Collective Agreements

Under the prior ESA, if the Collective Agreement said anything about hours of work, overtime, statutory holidays, annual vacation, seniority, recall termination of employment or layoff, then those provisions of the ESA did not apply.

Under the new ESA:

• Collective agreement terms special clothing, hours of work or overtime, statutory holidays, vacation or vacation pay, and seniority retention, recall, termination of employment or layoff, must "meet or exceed" the comparable statutory minimum standards, which can take the whole Part into account rather than a section by section comparison.
• The "meet or exceed" standard will only apply to collective agreements negotiated or renewed after the legislation is enacted.
• If the provisions of the collective agreement do not "meet or exceed" the ESA standards (when considered together), then the ESA still applies to those employees.
• These new requirements do not apply until a new or renewed collective agreement comes into force.

Wage assignments

• Employers are now expressly permitted to make deductions from an employees' wages to repay wage advances, including unearned but used vacation pay, an unpaid balance arising from the employee's purchase of goods or services from an employer, or an employee's personal use of employer property, provided that the employee has signed a written wage assignment.

Informing employees of their rights

• Employers must make available or provide to employees a prescribed form which sets out information about the employee's rights under the ESA.

Modernized Employment Standards Branch services

• The Employment Standards Branch must investigate all complaints except in circumstances where the complaint has already been resolved or is bound to fail.
• The investigation may involve alternative dispute resolution, and an oral hearing is not required.
• The Director of Employment Standards may waive previously mandatory monetary penalties if the breach was not deliberate or negligent and the employer contests the complaint on the basis of an arguable interpretation of the ESA or valid factual dispute.

What's not changing?

• No changes to vacation pay
• No changes to overtime averaging or hours of work
• No addition of sick days
• No right to decline overtime for family obligations
• No changes to minimum call-in pay

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.