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Difference between revisions of "Employment Law Issues (9:V)"

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Employment Law Issues (9:V) (view source)

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{{LSLAP Manual TOC|expanded = employment}}
{{LSLAP Manual TOC|expanded = employment}}


Use this section to identify any potential issues the employee might have. Note that this section is geared towards identifying the most common employment law issues for provincially regulated non-unionized employees (see [[Preliminary Matters for Employment Law (9:IV) | Section IV: Preliminary Matters]] to determine whether the worker in question is a provincially regulated non-unionized employee). However, many issues will apply in a similar fashion to federally regulated employees, and some issues will also apply to unionized employees.  
Use this section to identify the employee’s legal issues. This section is geared towards identifying the most common employment law issues for provincially regulated non-unionized employees (see [[Preliminary Matters for Employment Law (9:IV) | Section IV: Preliminary Matters]] to determine whether the worker in question is a provincially regulated non-unionized employee). However, many issues will apply in a similar fashion to federally regulated employees, and some issues will also apply to unionized employees.  


Generally, employment issues arise as a breach of the ''Human Rights Code'', the ''Employment Standards Act'', or an employment contract. Take note of which of these legal protections applies for the issue that you identify, and then see [[Remedies in Employment Law (9:VI) | Section VI: Remedies]] to find out how to proceed.  
Generally, employment issues arise as a breach of the ''Human Rights Code'', the ''Employment Standards Act'', or an employment contract. Take note of which of these legal protections applies for the issue that you identify, and then see [[Remedies in Employment Law (9:VI) | Section VI: Remedies]] to find out how to proceed.  


== Employment Standards Act Claims ==
== A. Employment Standards Act Claims ==


The ESA sets the minimum standards for various conditions of employment.  The ESA applies to provincially regulated employees.  The ESA addresses some of the most basic employee entitlements, such as wages, vacation pay, holiday pay, overtime, pregnancy and other leaves, and termination standards.     
The ESA sets the minimum standards for various conditions of employment.  The ESA applies to provincially regulated employees.  The ESA addresses some of the most basic employee entitlements, such as wages, vacation pay, holiday pay, overtime, pregnancy and other leaves, and termination standards.     
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=== 1. Hiring Practices ===
=== 1. Hiring Practices ===


An employer may not induce a person to become an employee or to make him or herself available for work by deceptive or false representations or advertising respecting the availability of a position, the nature of the work to be done, the wages to be paid for the work, or the conditions of employment.  If this occurs, the employee could file a complaint at the Employment Standards Branch per section 8 of the ESA.   
An employer may not induce a person to become an employee or to make themselves available for work by deceptive or false representations or advertising respecting the availability of a position, the nature of the work to be done, the wages to be paid for the work, or the conditions of employment.  If this occurs, the employee could file a complaint at the Employment Standards Branch per section 8 of the ESA.   


Apart from ESA entitlements, an employee who was hired as a result of false representations could potentially sue for the tort of misrepresentation.  For more information about this tort, see ''Queen v Cognos Inc'', [1993] 1 SCR 87, https://canlii.ca/t/1fs5s.
Apart from ESA entitlements, an employee who was hired as a result of false representations could potentially sue for the tort of misrepresentation.  For more information about this tort, see ''Queen v Cognos Inc'', [1993] 1 SCR 87, https://canlii.ca/t/1fs5s.
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A number of the more recent amendments to the ESA deal with talent agencies and impose minimum standards on what was previously an unregulated industry.  A talent agency must be licensed annually under the Act.  Once an agency is licensed, it may receive wages on behalf of clients who have done work in the film or television industry.  Section 38.1 of the ES Regulation provides that wages received by a talent agency from an employer must be paid to the employee within a prescribed period: five business days from receipt of payment if payment is made within B.C. and twelve business days from receipt of payment if payment is made from outside B.C.
A number of the more recent amendments to the ESA deal with talent agencies and impose minimum standards on what was previously an unregulated industry.  A talent agency must be licensed annually under the Act.  Once an agency is licensed, it may receive wages on behalf of clients who have done work in the film or television industry.  Section 38.1 of the ES Regulation provides that wages received by a talent agency from an employer must be paid to the employee within a prescribed period: five business days from receipt of payment if payment is made within B.C. and twelve business days from receipt of payment if payment is made from outside B.C.


Talent agencies can charge a maximum 15 percent commission, and must ensure that the employee receives at least minimum wage after this deduction.  The only other fee a talent agency may charge is for photography, and this charge must not exceed $25.00 per year.  This fee may only be deducted from wages owed to the employee.  When a talent agency is named in a determination or order, unpaid wages constitute a lien against the real and personal property of the agency.  A 1999 amendment to section 127 of the Act gives the Lieutenant Governor in Council the power to regulate these agencies and, accordingly, the ES Regulation should be consulted for further information.  A list of talent agencies currently licensed in B.C. is available at http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/specific-industries/talent-agencies.  
Talent agencies can charge a maximum 15 percent commission, and must ensure that the employee receives at least minimum wage after this deduction.  The only other fee a talent agency may charge is for photography, and this charge must not exceed $25.00 per year.  This fee may only be deducted from wages owed to the employee.  When a talent agency is named in a determination or order, unpaid wages constitute a lien against the real and personal property of the agency.  A 1999 amendment to section 127 of the Act gives the Lieutenant Governor in Council the power to regulate these agencies and, accordingly, the ES Regulation should be consulted for further information.  Information on licensed talent agencies, including a list of talent agencies currently licensed in B.C. is available at http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/licensing/licensing-talent-agencies.  


=== 4. Child Employment ===
=== 4. Child Employment ===
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=== 5. Wages ===
=== 5. Wages ===


==== Minimum Wage and the Entry Level Wage ====
==== a) Minimum Wage and the Entry Level Wage ====


As of June 1, 2021, the minimum wage in British Columbia is $15.20/hour. Minimum wage information from the Employment Standards Branch can be found at https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/wages/minimum-wage   
As of June 1, 2021, the minimum wage in British Columbia is $15.20/hour. Minimum wage information from the Employment Standards Branch can be found at https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/wages/minimum-wage   
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Please note that there are other exceptions under Part 4 of the ''ES Regulation'', which include live-in home support workers, resident caretakers, and farm workers.  See ss 16–18 of the ''ES Regulation''.
Please note that there are other exceptions under Part 4 of the ''ES Regulation'', which include live-in home support workers, resident caretakers, and farm workers.  See ss 16–18 of the ''ES Regulation''.


The BC government has announced its commitment to yearly minimum wage increases linked to the BC Consumer Price Index.  For more information regarding up to date information on minimum wage in BC, see the Minimum Wage Factsheet at: www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/factsheets/minimum-wage
Federally regulated employees are entitled to the minimum wage of the province that they work in (''Canada Labour Code'', s 178).


Federally regulated employees are entitled to the minimum wage of the province that they work in (''Canada Labour Code'', s 178).  Thus, federal employees working in B.C. are entitled to $10.85 per hour.
==== b) Wage Clawbacks ====
 
==== Wage Clawbacks ====


Section 16 of the ESA deals with the issue of “claw-backs”.  This term refers to an employer who gives an employee an advance on future wages or commissions.  Section 16 states that when the employer re-claims such advances, they must not take back an amount that would leave the employee under the minimum wage rate for the hours worked.  Employers who claw-back wages from commission workers must ensure that the amount of wages clawed back does not cause the worker to ultimately receive less than minimum wage.  
Section 16 of the ESA deals with the issue of “claw-backs”.  This term refers to an employer who gives an employee an advance on future wages or commissions.  Section 16 states that when the employer re-claims such advances, they must not take back an amount that would leave the employee under the minimum wage rate for the hours worked.  Employers who claw-back wages from commission workers must ensure that the amount of wages clawed back does not cause the worker to ultimately receive less than minimum wage.  


==== Payment of Wages ====
==== c) Payment of Wages ====


'''Timing'''
'''Timing'''


Employers have to pay wages- at least semi-monthly and no later than eight days after the end of the pay period (ESA, s 17).  This section does not apply to public school teachers and professors (''ES Regulation'', s 40).  Wages, as defined in Part 1, include salaries, commissions, work incentives, compensation for length of service (ESA, s 63), money by order of the tribunal, and money payable for employees’ benefit to a fund or insurer (in Parts 10 and 11 only).  The definition does not include, for instance, expenses, penalties, gratuities, or travel allowance (however, travel time is considered time worked for which wages are payable, whereas commuting time is generally not).   
Employers must pay wages- at least semi-monthly and no later than eight days after the end of the pay period (ESA, s 17).  This section does not apply to public school teachers and professors (''ES Regulation'', s 40).  Wages, as defined in Part 1, include salaries, commissions, work incentives, compensation for length of service (ESA, s 63), money by order of the tribunal, and money payable for employees’ benefit to a fund or insurer (in Parts 10 and 11 only).  The definition does not include, for instance, expenses, penalties, gratuities, or travel allowance (however, travel time is considered time worked for which wages are payable, whereas commuting time is generally not).   


'''No Deductions for Business Costs'''
'''No Deductions for Business Costs'''
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'''Enforcement'''
'''Enforcement'''


To enforce the payment of wages, the ESA provides that the Director can arrange payment of wages to the employee, or to the Director, if he or she is satisfied that wages are owed to the employee.  Under the ESA, only the Canada Customs and Revenue Agency has priority over the Employment Standards Branch.  Finally, the Section 87 of the ESA provides that unpaid wages in a determination, settlement agreement or an order constitute a lien on real property owned by the employer.  The enforcement mechanisms available to the Employment Standards Branch are such that the lien often gets priority over other claims against the property (see also ''Helping Hands Agency Ltd v British Columbia (Director of Employment Standards)'', [1995] BCJ No 2524 (BCCA), https://canlii.ca/t/1ddv6).
To enforce the payment of wages, the ESA provides that the Director can arrange payment of wages to the employee, or to the Director, if they are satisfied that wages are owed to the employee.  Under the ESA, only the Canada Customs and Revenue Agency has priority over the Employment Standards Branch.  Finally, Section 87 of the ESA provides that unpaid wages in a determination, settlement agreement or an order constitute a lien on real property owned by the employer.  The enforcement mechanisms available to the Employment Standards Branch are such that the lien often gets priority over other claims against the property (see also ''Helping Hands Agency Ltd v British Columbia (Director of Employment Standards)'', [1995] BCJ No 2524 (BCCA), https://canlii.ca/t/1ddv6).


If an employee has not been paid wages, and the limitation date under the ESA has passed, the employee may still be able to file a claim in Small Claims Court or the Civil Resolution Tribunal, as it is a term of any employment contract that the employee be paid for their labour.  [[See Chapter 20: Small Claims (20) | Chapter 20: Small Claims]] and [[Section VI.D: Limitation Periods (VI.D) | Section VI.D Limitation Periods]].
If an employee has not been paid wages, and the limitation date under the ESA has passed, the employee may still be able to file a claim in Small Claims Court or the Civil Resolution Tribunal, as it is a term of any employment contract that the employee is paid for their labour.  See [[Introduction to Small Claims (20:I) | Chapter 20: Small Claims]] and [[Remedies in Employment Law_(9:VI)#D. Limitation Periods | Section VI.D Limitation Periods]].


==== Allowable Deductions ====
==== d) Allowable Deductions ====


Only certain deductions can be made from an employee’s wages (''ESA'', ss 21 and 22). There must be a written assignment of wages.  
Only certain deductions can be made from an employee’s wages (''ESA'', ss 21 and 22). There must be a written assignment of wages.  


Allowable deductions include EI, CPP, income tax, charitable donations, maintenance order payments (such as spousal or child support), union dues, pensions, insurance (medical and dental), and payments to meet credit obligations.  Benefit packages often allow a whole range of deductions from employee wages.  In the case of an employer who fails to remit these deductions, the Employment Standards Branch will collect from the employer the premiums the employee paid.  However, the Branch is not able to collect costs incurred by an employee who believed he or she was insured, i.e. actual cost of dental work done.  If an employee has suffered a loss such as this, they should consider whether they have a contractual agreement with the employer, and whether it has been breached; if so, they may be able to recover the loss in Small Claims Court or the Civil Resolution Tribunal.
Allowable deductions include EI, CPP, income tax, charitable donations, maintenance order payments (such as spousal or child support), union dues, pensions, insurance (medical and dental), and payments to meet credit obligations.  Benefit packages often allow a whole range of deductions from employee wages.  In the case of an employer who fails to remit these deductions, the Employment Standards Branch will collect from the employer the premiums the employee paid.  However, the Branch is not able to collect costs incurred by an employee who believed they were insured, i.e. actual cost of dental work done.  If an employee has suffered a loss such as this, they should consider whether they have a contractual agreement with the employer, and whether it has been breached; if so, they may be able to recover the loss in Small Claims Court or the Civil Resolution Tribunal.


Section 22(4) of the ''ESA'' allows the employer to deduct money from the employee’s paycheque to satisfy the employee’s credit obligation (for example, if the employer has loaned the employee money, or if the employee has agreed to pay the employer a monthly sum for personal use of the employer’s car). To do this, the employee must make a written assignment of wages to the employer.   
Section 22(4) of the ''ESA'' allows the employer to deduct money from the employee’s paycheque to satisfy the employee’s credit obligation (for example, if the employer has loaned the employee money, or if the employee has agreed to pay the employer a monthly sum for personal use of the employer’s car). To do this, the employee must make a written assignment of wages to the employer.   


==== Business expenses charged to an employee ====
==== e) Business expenses charged to an employee ====


An employer cannot require employees to pay any business costs – as either a deduction from their paycheque or out of their pockets or gratuities. Examples of business costs include loss due to theft, damage, breakage, or poor quality of work, damage to employer’s property, or failure to pay by a customer (e.g. dine-and-dash). If an employer deducts business costs from an employee’s wages they can be required to  reimburse the employee for the amount, and can be fined by the Employment Standards Branch for failing to follow the ''ESA''.
An employer cannot require employees to pay any business costs – as either a deduction from their paycheque or out of their pockets or gratuities. Examples of business costs include loss due to theft, damage, breakage, or poor quality of work, damage to employer’s property, or failure to pay by a customer (e.g. dine-and-dash). If an employer deducts business costs from an employee’s wages they can be required to  reimburse the employee for the amount, and can be fined by the Employment Standards Branch for failing to follow the ''ESA''.
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Under the ''ESA'', employees are generally entitled to be paid at overtime rates if they work over 8 hours in a day, or over 40 hours in one week. See the ''ESA'', Part 4 which sets out overtime rates and entitlements.   
Under the ''ESA'', employees are generally entitled to be paid at overtime rates if they work over 8 hours in a day, or over 40 hours in one week. See the ''ESA'', Part 4 which sets out overtime rates and entitlements.   


==== Regular Hours and Rest Periods ====
==== a) Regular Hours and Rest Periods ====


An employer must not require or permit an employee to work more than eight hours per day or 40 hours per week as a rule, unless the employer  pays overtime wages (''ESA'', s 35). An exception to this overtime rule is made for workers who have written averaging agreements under s 37  (see the next section for more information on averaging agreements). An employer must ensure that no employee works more than five consecutive hours without a half-hour meal break (s 32). Such eating periods are not included in hours of work. There is no entitlement to coffee breaks.  
An employer must not require or permit an employee to work more than eight hours per day or 40 hours per week as a rule, unless the employer  pays overtime wages (''ESA'', s 35). An exception to this overtime rule is made for workers who have written averaging agreements under s 37  (see the next section for more information on averaging agreements). An employer must ensure that no employee works more than five consecutive hours without a half-hour meal break (s 32). Such eating periods are not included in hours of work. There is no entitlement to coffee breaks.  
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Federally regulated employees cannot work more than  eight hours per day or 40 hours per week as a rule, but unlike provincially regulated employees there is a 48 hours a week maximum, even with overtime rates being paid (''Canada Labour Code'', s 171). Averaging agreements are  allowed under the federal legislation. There are no specifications for meal breaks. Employees are entitled to one day off from work each week (Sunday if possible). There is no requirement for time off between shifts.  
Federally regulated employees cannot work more than  eight hours per day or 40 hours per week as a rule, but unlike provincially regulated employees there is a 48 hours a week maximum, even with overtime rates being paid (''Canada Labour Code'', s 171). Averaging agreements are  allowed under the federal legislation. There are no specifications for meal breaks. Employees are entitled to one day off from work each week (Sunday if possible). There is no requirement for time off between shifts.  


==== Overtime ====
==== b) Overtime ====


'''Daily Overtime:''' Unless he or she has an averaging agreement, an employee must be paid overtime wages if he or she works more than eight  hours in any one day. Employees are to be paid one and a half times their regular wage rate for time worked beyond eight but less than 12 hours in one day, and two times their regular wage rate for any time worked beyond those 12 hours in one day (''ESA'', s 40(1)).  
'''Daily Overtime:''' Unless they have an averaging agreement, an employee must be paid overtime wages if they work more than eight  hours in any one day. Employees are to be paid one and a half times their regular wage rate for time worked beyond eight but less than 12 hours in one day, and two times their regular wage rate for any time worked beyond those 12 hours in one day (''ESA'', s 40(1)).  


'''Weekly Overtime:''' Unless part of an averaging agreement, overtime must also be calculated on a weekly basis. For any time over 40 hours per week, an employee will receive one and a half times his or her regular wage (s 40(2)). When determining the weekly overtime, employers must use only the first eight hours of each day worked (s 40(3)). Essentially, this means that if an employee works six days out of the week, eight hours each day, eight of those hours have to be paid at one and one half times the regular rate. However, if an employee works 10 hours a day for four days a week, it would be calculated under daily overtime as the weekly hours still add up to 40.  
'''Weekly Overtime:''' Unless part of an averaging agreement, overtime must also be calculated on a weekly basis. For any time over 40 hours per week, an employee will receive one and a half times their regular wage (s 40(2)). When determining the weekly overtime, employers must use only the first eight hours of each day worked (s 40(3)). Essentially, this means that if an employee works six days out of the week, eight hours each day, eight of those hours have to be paid at one and one half times the regular rate. However, if an employee works 10 hours a day for four days a week, it would be calculated under daily overtime as the weekly hours still add up to 40.  


==== Overtime Banks ====
==== c) Overtime Banks ====


Section 42 of the ''ESA'' allows for the “banking” of overtime hours on a written request from the employee, if the employer agrees to such a  system. Hours are banked at overtime rates. The employee may ask at any time to be paid the overtime hours as wages, or to take these hours as paid time off of work at on dates agreed to by the employer and employee (s 42(3)). The employer may close the employee’s time bank with one month’s notice to the employee at any time (s 42(3.1)), and within six months of doing so, must either pay the employee for the hours in the time bank, allow the employee to take time off with pay equivalent to the amount in the time bank, or some combination of the two (s 42(3.2)). If the employee requests the time bank be closed, or if the employment relationship is terminated, the employer must pay the employee for the hours in the time bank on the next payday.  
Section 42 of the ''ESA'' allows for the “banking” of overtime hours on a written request from the employee, if the employer agrees to such a  system. Hours are banked at overtime rates. The employee may ask at any time to be paid the overtime hours as wages, or to take these hours as paid time off of work at on dates agreed to by the employer and employee (s 42(3)). The employer may close the employee’s time bank with one month’s notice to the employee at any time (s 42(3.1)), and within six months of doing so, must either pay the employee for the hours in the time bank, allow the employee to take time off with pay equivalent to the amount in the time bank, or some combination of the two (s 42(3.2)). If the employee requests the time bank be closed, or if the employment relationship is terminated, the employer must pay the employee for the hours in the time bank on the next payday.  
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Federally regulated employees cannot opt for time off in lieu of overtime pay. All overtime hours must be paid at one and a half times the regular rate of pay (''Canada Labour Code'', s 174).  
Federally regulated employees cannot opt for time off in lieu of overtime pay. All overtime hours must be paid at one and a half times the regular rate of pay (''Canada Labour Code'', s 174).  


==== Employees and Occupations Exempt from Overtime ====
==== d) Employees and Occupations Exempt from Overtime ====


Part 7 of the ''ES Regulation'' excludes certain groups of employees from the following rules under Part 4 of the ESA. They may be excluded  from Part 4 of the Act as a whole, or excluded from certain sections only. Please check the Regulation for more details.   
Part 7 of the ''ES Regulation'' excludes certain groups of employees from the following rules under Part 4 of the ESA. They may be excluded  from Part 4 of the Act as a whole, or excluded from certain sections only. Please check the Regulation for more details.   
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Be aware that even though an employee is considered a manager (or falls within another overtime exemption), the employee is still entitled to be paid for all hours worked.     
Be aware that even though an employee is considered a manager (or falls within another overtime exemption), the employee is still entitled to be paid for all hours worked.     


Entitlement to overtime pay may be affected by an employment contract.  Review the manager’s contract, and see if there is a clause that deals with hours of work.  If a manager or other exempt employee works more hours than set out in their employment contract, they may be entitled to additional pay for those hours at a standard wage rate.  If the employment contract specifies that an annual salary is in exchange for a set amount of hours over 40, this may impact the employee’s entitlement to be paid at an overtime rate.
Entitlement to overtime pay may be affected by an employment contract.  Review the manager’s contract, and see if there is a clause that deals with hours of work.  If a manager or other exempt employee works more hours than set out in their employment contract, they may be entitled to additional pay for those hours at a standard wage rate.  If the employment contract specifies that an annual salary is in exchange for a set number of hours over 40, this may impact the employee’s entitlement to be paid at an overtime rate.


If the manager does not have a contract, collect any evidence you can regarding an agreement on the manager’s hours of work, and evidence on historical hours worked.     
If the manager does not have a contract, collect any evidence you can regarding an agreement on the manager’s hours of work, and evidence on historical hours worked.     


The ''ESA'' Interpretation Guidelines provides some helpful discussion on overtime, and can be found at http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/igm/esa-part-4-section-35.
The ''ESA'' Interpretation Guidelines provides some helpful discussion on overtime, and can be found at http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources//igm/esa-part-4-section-35.


==== Minimum Daily Hours ====
==== e) Minimum Daily Hours ====


When workers report for work as required by an employer, whether or not they start work, they are entitled to two hours of pay unless they are unfit for work or do not meet Occupational Health and Safety Regulations.  Whether or not an employee starts work, if an employer had previously scheduled an employee to work for more than eight hours that day, he or she is entitled to a minimum of four hours pay, unless inclement weather or other factors beyond the employer’s control caused the employee to be unable to work, in which case the worker is entitled to just two hours’ pay  (''ESA'', s 34).  
When workers report for work as required by an employer, whether or not they start work, they are entitled to two hours of pay unless they are unfit for work or do not meet Occupational Health and Safety Regulations.  Whether or not an employee starts work, if an employer had previously scheduled an employee to work for more than eight hours that day, they are entitled to a minimum of four hours pay, unless inclement weather or other factors beyond the employer’s control caused the employee to be unable to work, in which case the worker is entitled to just two hours’ pay  (''ESA'', s 34).  


==== Shift Work ====
==== f) Shift Work ====


An employee is entitled to at least eight hours free between shifts, unless there is an emergency. Split shifts must be completed within a 12-hour period (''ESA'', s 33).  
An employee is entitled to at least eight hours free between shifts, unless there is an emergency. Split shifts must be completed within a 12-hour period (''ESA'', s 33).  


==== Variance ====
==== g) Variance ====


It is possible for an employer to apply for a variance to exclude employees from certain provisions of the ''ESA''. To apply for a variance,  the employer must write a letter to the Director of Employment Standards, and must have the signatures of at least 50 percent of the employees  who are to be affected. When reviewing the application, the Director must consider whether the variance is inconsistent with the purpose of  the ''ESA'' and the Regulation, and whether any losses incurred by the employees are balanced by any gains.  
It is possible for an employer to apply for a variance to exclude employees from certain provisions of the ''ESA''. To apply for a variance,  the employer must write a letter to the Director of Employment Standards, and must have the signatures of at least 50 percent of the employees  who are to be affected. When reviewing the application, the Director must consider whether the variance is inconsistent with the purpose of  the ''ESA'' and the Regulation, and whether any losses incurred by the employees are balanced by any gains.  
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For more information see: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/esa-part-9-section-72.
For more information see: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/esa-part-9-section-72.


==== Averaging Agreements ====  
==== h) Averaging Agreements ====  


Under s 37 of the ESA, an employee and employer can agree to average an employee’s hours of work over a period of up to four weeks for the purposes of determining overtime.  These agreements must be in writing and be signed by both parties before the start date of the agreement and must specify the number of weeks over which the agreement applies.  It must also specify the work schedule of each day covered by the agreement and specify the number of times if any that the agreement can be repeated.  The employee must receive a copy of this agreement before the agreement begins.  The work schedule in such an agreement must still follow conditions outlined from ss 37(3) – (9).  The employer and employee may agree at the employee’s written request to adjust the work schedule (s 37(10)).  The Employment Standards Branch will not get involved unless a complaint is made.
Under s 37 of the ESA, an employee and employer can agree to average an employee’s hours of work over a period of up to four weeks for the purposes of determining overtime.  These agreements must be in writing and be signed by both parties before the start date of the agreement and must specify the number of weeks over which the agreement applies.  It must also specify the work schedule of each day covered by the agreement and specify the number of times if any that the agreement can be repeated.  The employee must receive a copy of this agreement before the agreement begins.  The work schedule in such an agreement must still follow conditions outlined from ss 37(3) – (9).  The employer and employee may agree at the employee’s written request to adjust the work schedule (s 37(10)).  The Employment Standards Branch will not get involved unless a complaint is made.
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Employment contracts must provide at least the minimums vacation and vacation pay entitlements as set out in the ''ESA'' (ss 57-60). Employees can be entitled to vacation and vacation pay entitlements above the ''ESA'' minimums if agreed to in an employment contract.   
Employment contracts must provide at least the minimums vacation and vacation pay entitlements as set out in the ''ESA'' (ss 57-60). Employees can be entitled to vacation and vacation pay entitlements above the ''ESA'' minimums if agreed to in an employment contract.   


==== Annual Vacation ====
==== a) Annual Vacations ====


After each year worked, employees are entitled to an annual vacation of at least two weeks. After five years employment, this entitlement  increases to three weeks. Employees must take vacation each year.  
After each year worked, employees are entitled to an annual vacation of at least two weeks. After five years employment, this entitlement  increases to three weeks. Employees must take at least their minimum vacation time off of work each year within the year or up to one year thereafter (s.57(2) ''ESA'').


Annual vacation is without pay, but the employee should receive vacation pay either in advance of his vacation, or on each paycheck. See  Vacation Pay explanation below.  
Annual vacation is without pay, but the employee should receive vacation pay either in advance of his vacation, or on each paycheck. See  Vacation Pay explanation below.  


==== Vacation Pay ====
==== b) Vacation Pay ====


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%.   
After 5 days of work, the employer is required to pay the employee 4% of their 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.  Alternatively, with written consent the employer can pay the employee his or her vacation pay on each paycheck.     
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.  Alternatively, with written consent the employer can pay the employee their vacation pay on each paycheck.     


If the employee is terminated, the employer is required to pay out any vacation pay owing to the employee. Based on the timing of when vacation pay is earned and payable, this can result in some circumstances where employees will have claims for years of vacation pay owing.   
If the employee is terminated, the employer is required to pay out any vacation pay owing to the employee. Based on the timing of when vacation pay is earned and payable, this can result in some circumstances where employees will have claims for years of vacation pay owing.   
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=== 8. Statutory Holidays and Statutory Holiday Pay ===
=== 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.   
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). 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.   
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 must 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.  
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.  
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=== 9. Leaves of Absence ===
=== 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.  
Part 6 of the ''ESA'' regulates leaves of absence. Again, Part 7 of the ''ES Regulation'' should be consulted to determine if an employee 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 employee who is on leave under any of the following categories maintains several of the same protections they 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:VI) | Section VI: 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.  
An employer may not terminate an employee for taking a leave they are 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 the 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:VI) | Section VI: 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}}#C. Termination of Employment | V.C: Termination of Employment]].  
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}}#C. Termination of Employment | V.C: Termination of Employment]].  
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'''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).  
'''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).  


==== Pregnancy and Parental Leave ====
==== a) Pregnancy and Parental Leave ====


Pregnancy leave is protected under the ESA and the HRC.  An employee dismissed while on pregnancy leave may also be entitled to a larger common law severance.  
Pregnancy leave is protected under the ESA and the HRC.  An employee dismissed while on pregnancy leave may also be entitled to a larger common law severance.  
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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.
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.
An employer has a duty to allow the employee the leave they request 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 they 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 individuals 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.
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 individuals 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.
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An employer can terminate the employment of a pregnant person if the termination is part of legitimate downsizing (s 54).
An employer can terminate the employment of a pregnant person if the termination is part of legitimate downsizing (s 54).


==== Family Responsibility Leave ====
==== 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.  
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.  


==== Bereavement Leave ====
==== 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.”
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.”


==== Compassionate Leave ====
==== d) Compassionate Care Leave ====


The ESA was amended to allow an employee to take up to 27 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 Chapter 8: Employment Insurance.   
The ESA was amended to allow an employee to take up to 27 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 Chapter 8: Employment Insurance.   


==== Jury Duty ====
==== e) Jury Duty ====


An employee is entitled to unpaid leave to meet the requirements of being selected for jury duty (''ESA'', s 55).  
An employee is entitled to unpaid leave to meet the requirements of being selected for jury duty (''ESA'', s 55).  


==== Reservists’ Leave ====
==== f) Reservists’ Leave ====


Under certain circumstances the ''ESA'' now allows unpaid leave for reservists in the Canadian Armed Forces (''ESA'', s 52.2).  
Under certain circumstances the ''ESA'' now allows unpaid leave for reservists in the Canadian Armed Forces (''ESA'', s 52.2).  


==== Leave Respecting Disappearance or Death of a Child ====
==== g) Leave Respecting Disappearance or Death of a Child ====


An employee is entitled to up to 52 weeks of unpaid leave relating to the disappearance or a child, and up to 104 weeks relating to the death of a child (see ESA s. 52.3 and 52.4)
An employee is entitled to up to 52 weeks of unpaid leave relating to the disappearance or a child, and up to 104 weeks relating to the death of a child (see ESA s. 52.3 and 52.4)


=== Leave Respecting Domestic or Sexual Violence ===
==== h) Leave Respecting Domestic or Sexual Violence ====


An employee is entitled to unpaid leave of up to 10 days, plus an additional 15 weeks, if required as a result of domestic or sexual violence to either the employee or an eligible person (i.e. child under the employee’s care) (see ESA s. 52.5)   
An employee is entitled to unpaid leave of up to 10 days, plus an additional 15 weeks, if required as a result of domestic or sexual violence to either the employee or an eligible person (i.e. child under the employee’s care) (see ESA s. 52.5)   


=== Critical Illness or Injury Leave ===
==== i) Critical Illness or Injury Leave ====


An employee is entitled to up to 36 weeks of unpaid leave to provide care to a critically ill family member under 19 years of age, or up to 16 weeks of unpaid leave to provide care for a critically ill family member who is over 19. (see ESA s. 52.11)   
An employee is entitled to up to 36 weeks of unpaid leave to provide care to a critically ill family member under 19 years of age, or up to 16 weeks of unpaid leave to provide care for a critically ill family member who is over 19. (see ESA s. 52.11)   


=== Illness or Injury Leave ===
==== j) Illness or Injury Leave ====
An employee is entitled to up to 3 days of unpaid sick leave after 90 consecutive days of employment (see ESA s. 49.1)
An employee is entitled to up to 3 days of unpaid sick leave after 90 consecutive days of employment (see ESA s. 49.1)


=== Covid-19 Related Leave ===
==== k) Covid-19 Related Leave ====
An employee is entitled to unpaid leave for Covid-19 related reasons as defined in section 52.12 of the ESA, for as long as the circumstances giving rise to the leave apply to the employee (see ESA s. 52.12). An employee is entitled to Covid-19 related paid leave in accordance with section 52.121 of the ESA and leave for Covid-19 vaccination in accordance with section 52.13 of the ESA. See section 11 for more details on Covid-19 related ESA issues.
An employee is entitled to unpaid leave for Covid-19 related reasons as defined in section 52.12 of the ESA, for as long as the circumstances giving rise to the leave apply to the employee (see ESA s. 52.12). An employee is entitled to Covid-19 related paid leave in accordance with section 52.121 of the ESA and leave for Covid-19 vaccination in accordance with section 52.13 of the ESA. See section 11 for more details on Covid-19 related ESA issues.


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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''. Check the legislation directly, and any appropriate case law on the matter.  
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''. Check the legislation directly, and any appropriate case law on the matter.  


==== Independent Contractors ====
==== a) Independent Contractors ====


See [[Preliminary Matters for Employment Law (9:IV)#D. Determine if the Worker is an Employee or Independent Contractor | Section IV.D: Determine if the Worker is an Employee or Independent Contractor]] to determine whether the worker in question is an employee or an independent contractor. The ''ESA'' applies only to employees.   
See [[Preliminary Matters for Employment Law (9:IV)#D. Determine if the Worker is an Employee or Independent Contractor | Section IV.D: Determine if the Worker is an Employee or Independent Contractor]] to determine whether the worker in question is an employee or an independent contractor. The ''ESA'' applies only to employees.   


==== Commissioned Salespeople ====
==== 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.  
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.  
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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.  
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.  


==== Farm Labourers and Domestic Workers ====
==== 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 V.A.6(h): Averaging Agreements]]).
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 V.A.6(h): Averaging Agreements]]).
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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.
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.


'''NOTE:''' The federal government via Citizenship and Immigration Canada administers the Live-in Caregiver Program.  The Program came into effect on April 27, 1992.  The purpose of the program is to prevent abuse and exploitation of domestic workers.  The program was to clarify the employer-employee relationship by providing information on the terms and conditions of employment and on the rights of workers under Canadian law.  The program also sets out educational requirements for live-in caregivers which are designed to aid a worker’s ability to get a job after gaining permanent residency status and leaving domestic employment.  While the first-year assessment interview and in-Canada skills upgrading have been eliminated, the remaining requirements are very high, thereby forming a serious barrier for these women to enter Canada.  The program requires the equivalent of a Grade 12 education (equivalent to second-year university in many countries) and six months of formal training in the caregiving field or one year of full-time paid work experience, and good knowledge of English or French.  Further information is available  from the West Coast Domestic Workers’ Association (see [[Governing_Legislation_and_Resources_for_Employment_Law_(9:II)#C. Referrals | Section II.C: Referrals]]).
'''NOTE:''' The federal government via Citizenship and Immigration Canada administers the Live-in Caregiver Program.  The Program came into effect on April 27, 1992.  The purpose of the program is to prevent abuse and exploitation of domestic workers.  The program was to clarify the employer-employee relationship by providing information on the terms and conditions of employment and on the rights of workers under Canadian law.  The program also sets out educational requirements for live-in caregivers which are designed to aid a worker’s ability to get a job after gaining permanent residency status and leaving domestic employment.  While the first-year assessment interview and in-Canada skills upgrading have been eliminated, the remaining requirements are very high, thereby forming a serious barrier for these workers to enter Canada.  The program requires the equivalent of a Grade 12 education (equivalent to second-year university in many countries), six months of formal training in the caregiving field or one year of full-time paid work experience, and good knowledge of English or French.  Further information is available  from the West Coast Domestic Workers’ Association (see [[Governing_Legislation_and_Resources_for_Employment_Law_(9:II)#C. Referrals | Section II.C: Referrals]]).


==== High Technology Professionals ====
==== d) High Technology Professionals ====


The ''ES Regulation'' makes special provision for workers in the high technology sector. Most importantly, these professionals are exempt from the ''ESA'' provisions relating to hours of work, overtime, and Statutory Holidays (Parts 4 and 5). It is not easy, however, for an employee to qualify as a high technology professional – the criteria are very specific. See s 37.8 of the ''ES Regulation'' for a more detailed description, and especially if the employee deals with computers, information service, and scientific or technological endeavours.  
The ''ES Regulation'' makes special provision for workers in the high technology sector. Most importantly, these professionals are exempt from the ''ESA'' provisions relating to hours of work, overtime, and Statutory Holidays (Parts 4 and 5). It is not easy, however, for an employee to qualify as a high technology professional – the criteria are very specific. See s 37.8 of the ''ES Regulation'' for a more detailed description, and especially if the employee deals with computers, information service, and scientific or technological endeavours.  
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Not all employees classified as high tech professionals by their employer fit the definition, and as a result may be entitled to overtime.  The BC Employment Standards Branch awarded a group of digital animators who worked on the Sausage party movie overtime pay, as a result of a finding that they did not meet the overtime exempt definition of high tech professionals.  See ER#426308
Not all employees classified as high tech professionals by their employer fit the definition, and as a result may be entitled to overtime.  The BC Employment Standards Branch awarded a group of digital animators who worked on the Sausage party movie overtime pay, as a result of a finding that they did not meet the overtime exempt definition of high tech professionals.  See ER#426308


==== Silviculture (Reforestation) Workers ====
==== e) Silviculture (Reforestation) Workers ====


Special rules apply to workers in the reforestation and related industries (as defined in ''ES Regulation'' s 1(1)). A silviculture worker is paid on a piece rate basis. This is defined as a rate of pay based on a measurable amount of work completed (e.g., payment by the tree). Whatever the rate, it must exceed the  minimum wage rate. The ''ES Regulation'' lays out specific requirements that employers in these industries must meet relating to shift scheduling, holiday pay, and overtime. The special regulations are intended to address the remote job sites and special piece rate payment schemes that are popular in this industry. See ''ES Regulation'' s 37.9.
Special rules apply to workers in the reforestation and related industries (as defined in ''ES Regulation'' s 1(1)). A silviculture worker is paid on a piece rate basis. This is defined as a rate of pay based on a measurable amount of work completed (e.g., payment by the tree). Whatever the rate, it must exceed the  minimum wage rate. The ''ES Regulation'' lays out specific requirements that employers in these industries must meet relating to shift scheduling, holiday pay, and overtime. The special regulations are intended to address the remote job sites and special piece rate payment schemes that are popular in this industry. See ''ES Regulation'' s 37.9.


==== Professionals ====  
==== f) Professionals ====  


The ''ESA'' does not apply to architects, accountants, lawyers, chiropractors, dentists, engineers, insurance agents and adjusters, land surveyors, doctors, optometrists, real estate agents, securities advisers, veterinarians, or professional foresters (''ES Regulation'', s 31).   
The ''ESA'' does not apply to architects, accountants, lawyers, chiropractors, dentists, engineers, insurance agents and adjusters, land surveyors, doctors, optometrists, real estate agents, securities advisers, veterinarians, or professional foresters (''ES Regulation'', s 31).   


==== Other exceptions to the ESA ====
==== g) Other exceptions to the ESA ====


There are additional exceptions and variances to the ''ESA'' set out in the ''ES Regulation'', Part 7. Some of the professions for which there  are exceptions or variances to the ESA include:
There are additional exceptions and variances to the ''ESA'' set out in the ''ES Regulation'', Part 7. Some of the professions for which there  are exceptions or variances to the ESA include:
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*Foster care providers
*Foster care providers


== Covid-19 ==
== B. Covid-19 ==


Due to the ongoing effects of Covid-19 aspects of employment law and the Employment Standards Act have been affected. These changes may evolve or be mitigated depending on future events. Students should review the most current jurisprudence if Covid-19 is a factor in the case.
Due to the ongoing effects of Covid-19 aspects of employment law and the Employment Standards Act have been affected. These changes may evolve or be mitigated depending on future events. Students should review the most current jurisprudence if Covid-19 is a factor in the case.


====1. Covid-19 Related Leave ====
=== 1. Common Law and Covid-19 ===


==== a) Mitigation ====
==== a) Mitigation ====
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There is evolving jurisprudence on whether CERB benefits received by an employee should be deducted from an employee’s damages for wrongful dismissal.  A few recent cases support the proposition that CERB benefits should not be deducted from an employee’s severance award (see Slater v. Halifax Herald Limited, 2021 NSSC 210 & Fogelman v. IFG, 2021 ONSC 4042).  However, as this question is relatively new and is evolving students should review the most current state of the law on this issue.
There is evolving jurisprudence on whether CERB benefits received by an employee should be deducted from an employee’s damages for wrongful dismissal.  A few recent cases support the proposition that CERB benefits should not be deducted from an employee’s severance award (see Slater v. Halifax Herald Limited, 2021 NSSC 210 & Fogelman v. IFG, 2021 ONSC 4042).  However, as this question is relatively new and is evolving students should review the most current state of the law on this issue.


== The ESA and Covid-19 ==
== C. The ESA and Covid-19 ==


=== 1. Covid-19 Related Leaves under the ESA ===
=== 1. Covid-19 Related Leaves under the ESA ===
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The Employment Standards Branch interpretation guidelines have suggested that this clause may apply in some circumstances, as follows:  
The Employment Standards Branch interpretation guidelines have suggested that this clause may apply in some circumstances, as follows:  


If a business closure or staffing reduction is directly related to Covid-19 and there is no way for employees to perform work in a different way (for example, working from home) the exception may apply to exclude employees from receiving compensation for length of service and/or group termination pay.
Covid-19
 
:If a business closure or staffing reduction is directly related to Covid-19 and there is no way for employees to perform work in a different way (for example, working from home) the exception may apply to exclude employees from receiving compensation for length of service and/or group termination pay.
This exception is not automatic in all situations during the pandemic. If an employer terminates an employee for reasons that are not directly related to Covid-19 or if the employee's work could still be done (perhaps in a different way, such as working from home) the exception would not apply. Decisions on whether this exception applies are made by the Director on a case-by-case basis.
This exception is not automatic in all situations during the pandemic. If an employer terminates an employee for reasons that are not directly related to Covid-19 or if the employee's work could still be done (perhaps in a different way, such as working from home) the exception would not apply. Decisions on whether this exception applies are made by the Director on a case-by-case basis.


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As a result, students should review new Employment Standards decisions to see how this provision has actually been interpreted in relation to Covid-19.
As a result, students should review new Employment Standards decisions to see how this provision has actually been interpreted in relation to Covid-19.


== Breach of contractual terms of employment ==
== D. Breach of employment contract claim ==


=== 1. Severance Claims ===
=== 1. Severance Claims ===
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=== 2. Constructive Dismissal Claims ===
=== 2. Constructive Dismissal Claims ===


If an employer has significantly changed the type of work done by an employee, the employee’s rate of pay, or other working conditions, the employee may have been “constructively dismissed” and may be entitled to damages. See [[Section V.C: Termination of Employment (V.C) | Section V.C: Termination of Employment]] for further information.
If an employer has unilaterally changed a fundamental term of the employee’s employment, the employee may have been “constructively dismissed” and may be entitled to damages. See [[#C. Termination of Employment (V.C) | Section V.C: Termination of Employment]]. Examples of unilateral significant changes to fundamental terms of employment include significant changes to the type of work done by an employee, significant decreases to the employee’s rate of pay, or significant changes to other working conditions.


=== 3. Other Contractual Claims ===
=== 3. Other Contractual Claims ===
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