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

=== 5. Wages ===

As of June 1, 2019, minimum wage in British Columbia is $13.85/hour.. Minimum wage is scheduled to increase in June each year until June 2021.  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   

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.

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.  

'''Timing'''

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]].

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

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.   

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''.

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.   

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.  

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.  

'''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)).  

'''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.  

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.  

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).  

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.   

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.

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).  

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).  

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.  

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.

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.

Employees can be entitled to vacation and vacation pay entitlements above the ''ESA'' minimums if agreed to in an employment contract.   

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.  

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.  

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%.   

'''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 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.  

An employer can terminate the employment of a pregnant person if the termination is part of legitimate downsizing (s 54).

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 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.”

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.   

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

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

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 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 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)   

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.  

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 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.  

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 ''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]]).

'''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]]).

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.  

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

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.

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).   

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: