Canada: Getting Ready: More Impending Changes To BC's Employment Standards Act

British Columbia's Employment Standards Amendment Act (the "Amendment Act") received Royal Assent on May 30, 2019. Some provisions became effective at that time, while others have come into force since. On July 21, 2021, the BC Government announced that it will bring additional provisions into force on August 15, 2021 and October 15, 2021, respectively.

Broadly, the August 15th amendments alter the investigations, complaints and determinations processes set out in the Employment Standards Act ("ESA"), while the October 15th provisions change hiring practices as they pertain to children.

Significant changes that will come into force on August 15, 2021, include the following:

• The Director of Employment Standards (the "Director") will be empowered to investigate compliance with the ESA and Employment Standards Regulation (the "Regulation") "at any time or for any reason". This new provision is effectively the same as the Director's previous power to investigate regardless of a complaint being filed, but makes it clear that the Director can initiate an investigation at any time and for any reason.
• An employee whose employment is terminated must file a complaint within 6 months of their last day of employment. However, the new provisions explicitly permit an employee to apply for an extension. If the Director is satisfied that "special circumstances exist or existed" that prevented the complaint from being filed and an "injustice would otherwise result," the Director may extend the period to file a complaint.
• If the Director determines a complaint is validly filed within the 6 month period or within an extension period granted by the Director - and no other factors invalidate the complaint - the Director must investigate. This investigation may involve an alternative dispute resolution ("ADR") process. While the Director has always been permitted to resolve a complaint through a settlement agreement, the ability to use an ADR process in an investigation is new.
• If the Director decides that an employee's complaint may also relate to other employees, the Director will be permitted to "conduct a broader investigation" on the "subject matter of the complaint." If the Director's broader investigation is not completed or does not resolve the issues of the original complaint, the Director must still investigate and determine the original complaint. The power to expand an investigation of one employee's complaint to the broader workplace is new.
• There is no requirement for the Director to provide an oral hearing to any person under investigation, or anyone affected by a determination or reconsideration decision. While the ESA continues to mandate that the Director "must make reasonable efforts" to provide investigated persons with "an opportunity to respond," a new provision clarifies that such reasonable efforts do not extend to an oral hearing.
• Upon completion of a complaint investigation, the Director will be required to draft a written report that summarizes the Director's findings and to serve the report on: (1) the person who filed the complaint; (2) the person against whom the complaint was filed; and (3) any person the Director believes should have the opportunity to respond to the report. These persons will then be provided an opportunity to respond to the written report. The Director must then consider these responses along with the original written report in making a determination. Previously, the ESA did not require the Director to draft a written report at the conclusion of an investigation, and there was no formal process for responding to an investigation before a determination decision was issued.

Currently, employers only require parental consent when employing a child who is 14 or younger, and there is no designation in the ESA about the types of work that children 12 and older are permitted to perform. Significant changes that will come into force on October 15, 2021, include the following:

• The general working age is 16.
• In order to hire children under the age of 14 (unless certain exemptions apply - see below), employers must obtain the Director's permission and written parental or guardian consent. Currently, the Director's permission is only required when hiring children under the age of 12.
• If an employer hires a child who is 14 or 15 years old, the employer must obtain the written consent of the child's parent or guardian and only allow the child to perform "light work," described as work "unlikely to be harmful to the health or development of a child who is 14 or 15 years of age." Any work other than "light work" requires the express permission of the Director.
• The revised Regulation prescribes certain types of jobs that are considered "light work," which may be performed by 14- and 15-year olds with parental or guardian consent. These include:
• • Administrative and secretarial work;
  • Work in the retail sector including assembling and packaging orders, bagging and carrying orders, arranging displays, marking prices, stocking shelves, unpacking, counting, and weighing goods;
  • Work in the food service industry including preparing food, busing tables, dishwashing, hosting, and setting up and taking down tables, chairs, dishes, beverage dispensers, and other dining room equipment; and
  • Other jobs such as child care; some yard work; gardening; delivering goods; and troubleshooting IT user issues.
• The revised Regulation also provides a list of occupations that fall within the definition of "light work" including: cashier; computer programmer; golf caddy; messenger or courier; salesperson (but not door-to-door salesperson); server of food and/or drink; sports or recreational instructor/coach; tutor; visual artist; and writer or editor.
• The revised Regulation also defines tasks that are not light work as follows:
• • repairing, maintaining, or operating machinery or tools that "could harm the health or development" of a 14- or 15-year old child;
  • entering or working at a place where minors are prohibited;
  • entering or working at a construction, heavy manufacturing, or heavy industrial worksite that "could harm the health or development" of a 14- or 15-year old child;
  • entering or working in an oxygen-deficient or toxic atmosphere;
  • entering a walk-in freezer or cooler other than to place or retrieve an item;
  • handling, preparing, selling, or serving any good or service that a minor cannot legally distribute, purchase, or consume;
  • lifting, carrying, or moving an item or animal that could put the child at risk of musculoskeletal injury; and
  • using, handling, applying, or being exposed to a hazardous substance as defined in the Workers Compensation Act.
• The new provisions contain certain exemptions from the parental consent and/or Director permission requirements for "sitters" (i.e. babysitters), as well as for children performing certain light work if employed by a business or farm, owned by an immediate family member, or in a sports or recreational activity for children under 16 years of age, as a camp assistant, referee, or umpire.
• Additionally, while the current Regulations exempt sitters from the ESA outright, the new provisions will only exempt sitters and home care workers from the ESA if they work, on average, 15 hours or less per week in any four-week period, are not "live-in home support workers" and, in the case of sitters, do not reside at the employer's private residence.
• Importantly, any employers that hire a child prior to October 15, 2021 and do not change the child's position or duties after October 15, 2021, will be exempt from the new requirements if - as of January 15, 2022 - the child is either (i) 16 years old, or (ii) 14 years old and only performing light work.

The August 15th and October 15th amendments represent notable changes to BC's employment standards regime and employers must be mindful of these considerations if they find themselves facing an investigation initiated by the Director or if they are considering hiring children under the age of 16. Further, the BC government recently indicated that it plans to roll out additional regulations later this year to define "hazardous industry" restrictions, which are expected to apply to workers between the ages of 16 and 18. Stay tuned for more information as additional components of the 2019 Amendment Act continue to be brought into force.

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