Difference between revisions of "Checklist for Employment Law (9:III)"

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{{REVIEWED LSLAP | date= August 26, 2020}}
{{LSLAP Manual TOC|expanded = employment}}
{{LSLAP Manual TOC|expanded = employment}}


== A. Preliminary Matters ==
== A. Preliminary Matters ==
☑ '''Jurisdiction:''' Determine whether the employee falls within provincial or federal jurisdiction, and make a list of which statutes apply to the employee.
*See [[Preliminary Matters for Employment Law (9:III)#A. Determine Jurisdiction | Section IV.A: Jurisdiction]]


'''Unionized or Non-Unionized''': Determine whether the employee is working in a union environment, and if so, whether the employment  relationship is governed by a collective agreement, and whether the employee is in the bargaining unit covered by the collective agreement.  
{{Checkbox}} '''Jurisdiction:''' Determine whether the employee falls within provincial or federal jurisdiction, and make a list of which statutes apply to the employee.  
*See [[Preliminary Matters for Employment Law (9:III)#C. Determine if the Employee is Unionized or Non-Unionized | Section IV.C: Unionized vs. Non-Unionized Employees]]
*See [[Preliminary Matters for Employment Law (9:IV)#A. Determine Federal or Provincial Jurisdiction | Section IV.A: Jurisdiction]]


'''Employee or Contractor''': Determine whether the worker is an actual “employee” or an “independent contractor”.  
{{Checkbox}} '''Unionized or Non-Unionized''': Determine whether the employee is working in a union environment, and if so, whether the employment  relationship is governed by a collective agreement, and whether the employee is in the bargaining unit covered by the collective agreement.
*See [[Preliminary Matters for Employment Law (9:III)#D. Determine if the Worker is an Employee or Independent Contractor | Section IV.D: Employees vs. Independent Contractors]]
*See [[Preliminary Matters for Employment Law (9:IV)#C. Determine if the Employee is Unionized or Non-Unionized | Section IV.C: Unionized vs. Non-Unionized Employees]]
 
{{Checkbox}} '''Employee or Contractor''': Determine whether the worker is an actual “employee” or an “independent contractor”.  
*See [[Preliminary Matters for Employment Law (9:IV)#D. Determine if the Worker is an Employee or Independent Contractor | Section IV.D: Employees vs. Independent Contractors]]


== B. Determine the Issue ==
== B. Determine the Issue ==


Read through the common employment law issues and determine which issue(s) the employee is experiencing.  
{{Checkbox}} Read through the common employment law issues and determine which issue(s) the employee is experiencing.  
*See [[Employment Law Issues (9:IV) | Section V: Employment Issues]].  
*See [[Employment Law Issues (9:V) | Section V: Employment Issues]].  
*If the issue respects termination of employment, complete the checklist located at [[Employment Law Issues (9:IV)#1. Termination of Employment Checklist | Section V.C.1: Termination of Employment Checklist]] before returning to this list.
*If the issue respects termination of employment, complete the checklist located at [[Employment Law Issues (9:V)#1. Termination of Employment Checklist | Section V.C.1: Termination of Employment Checklist]] before returning to this list.


== C. Determine the Remedy ==
== C. Determine the Remedy ==


Determine your legal remedy based on the legal basis for your complaint: A breach of the ''Employment Standards Act'' will lead to a claim at the Employment Standards Branch; a breach of the Human Rights Code will lead to a complaint at the Human Rights Tribunal; and a breach of the employment contract, or one of its implied terms, will lead to a claim in Small Claims Court (for claims under $25,000) or BC Supreme Court (for claims over $25,000).   
{{Checkbox}} Determine the employee’s legal remedy based on the legal basis for the employee’s complaint: A breach of the Employment Standards Act will lead to a claim at the Employment Standards Branch; a breach of the Human Rights Code will lead to a complaint at the Human Rights Tribunal; and a breach of the employment contract, or one of its implied terms, will lead to a claim in Small Claims Court (for claims under $35,000 as of June 1, 2017) BC Supreme Court (for claims over $35,000 as of June 1, 2017), or the Civil Resolution Tribunal (for claims $5,000 or under).  As of June 1, 2017, with a number of exceptions, civil claims of up to $5000 will no longer be dealt with in Small Claims Court – instead, they will be resolved in B.C.’s online Civil Resolution Tribunal.   
*See [[Remedies in Employment Law (9:V) | Section V: Remedies]].  
*See [[Remedies in Employment Law (9:VI) | Section VI: Remedies]].
*See [[Chapter 20: Small Claims (20) | Chapter 20: Small Claims]].


Ensure that you have not missed the limitation date to file a claim.  
{{Checkbox}} Ensure that you have not missed the limitation date to file a claim.  
*See [[Remedies in Employment Law (9:V)#D. Limitation Periods | Section V.D: Limitation Periods]].
*See [[Remedies in Employment Law (9:VI)#D. Limitation Periods | Section VI.D: Limitation Periods]].


Determine whether there are any written contracts, employment policies, or other written terms of employment that apply to the worker.   
{{Checkbox}} Determine whether there are any written contracts, employment policies, or other written terms of employment that apply to the worker.   
*See [[Strategies_and_Tips_for_Employment_Law_(9:VII) | Section VII: Strategies and Tips]].


Consider the strategies and tips offered.  
{{Checkbox}} Consider the strategies and tips offered.  
*See [[Remedies in Employment Law (9:V)#E. Strategies and Tips | Section V.E: Strategies and Tips]].
*See [[Strategies_and_Tips_for_Employment_Law_(9:VII) | Section VII: Strategies and Tips]].


{| class="wikitable"
{| class="wikitable"
! colspan="5" | Forums for Employment Law Disputes
! colspan="6" | Forums for Employment Law Disputes
|-
|-
|  
|  
| '''Employment Standards Branch'''
| '''Employment Standards Branch'''
| '''Human Rights Tribunal'''
| '''Human Rights Tribunal'''
| '''Civil Resolution Tribunal'''
| '''Small Claims Court'''
| '''Small Claims Court'''
| '''Supreme Court'''
| '''Supreme Court'''
Line 42: Line 47:
| None
| None
| None
| None
| $100 for claims up to $3,000 $156 for claims over $3,000
| $100 for claims up to $3,000; $150 for claims over $3,000 (waivers may be available)
| $100 for claims up to $3,000; $156 for claims over $3,000
| $200 to file, plus additional costs for applications and trials exceeding 3 days
| $200 to file, plus additional costs for applications and trials exceeding 3 days
|-
|-
| '''Maximum Awards'''
| '''Maximum Awards'''
| No maximum dollar amount, but generally award limited to amounts owed for past 6 months only
| No maximum dollar amount, but generally award limited to amounts owed for past 12 months only - See ESA s.80
| No maximum
| No maximum
| $25,000
| $5,000
| $35,000 (as of June 1, 2017)
| No maximum
| No maximum
|-
|-
| '''Areas of Law'''
| '''Type of Claim'''
| Statutory entitlements in the ESA (i.e. minimum wage, overtime, vacation pay, etc.)
| Statutory entitlements in the ESA (i.e. minimum wage, overtime, vacation pay, etc.)
| Discrimination in employment or hiring
| Discrimination in employment or hiring
| Any term express or implied in the contract; wrongful dismissal
| Any term express or implied in the contract; wrongful dismissal
| Any term express or implied in the contract; wrongful dismissal
| Any term express or implied in the contract; wrongful dismissal
| Any term express or implied in the contract; wrongful dismissal
|}
|}
{{LSLAP Manual Navbox|type=chapters8-14}}

Revision as of 12:27, 18 August 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 26, 2020.



A. Preliminary Matters

Jurisdiction: Determine whether the employee falls within provincial or federal jurisdiction, and make a list of which statutes apply to the employee.

Unionized or Non-Unionized: Determine whether the employee is working in a union environment, and if so, whether the employment relationship is governed by a collective agreement, and whether the employee is in the bargaining unit covered by the collective agreement.

Employee or Contractor: Determine whether the worker is an actual “employee” or an “independent contractor”.

B. Determine the Issue

Read through the common employment law issues and determine which issue(s) the employee is experiencing.

C. Determine the Remedy

Determine the employee’s legal remedy based on the legal basis for the employee’s complaint: A breach of the Employment Standards Act will lead to a claim at the Employment Standards Branch; a breach of the Human Rights Code will lead to a complaint at the Human Rights Tribunal; and a breach of the employment contract, or one of its implied terms, will lead to a claim in Small Claims Court (for claims under $35,000 as of June 1, 2017) BC Supreme Court (for claims over $35,000 as of June 1, 2017), or the Civil Resolution Tribunal (for claims $5,000 or under). As of June 1, 2017, with a number of exceptions, civil claims of up to $5000 will no longer be dealt with in Small Claims Court – instead, they will be resolved in B.C.’s online Civil Resolution Tribunal.

Ensure that you have not missed the limitation date to file a claim.

Determine whether there are any written contracts, employment policies, or other written terms of employment that apply to the worker.

Consider the strategies and tips offered.

Forums for Employment Law Disputes
Employment Standards Branch Human Rights Tribunal Civil Resolution Tribunal Small Claims Court Supreme Court
Costs None None $100 for claims up to $3,000; $150 for claims over $3,000 (waivers may be available) $100 for claims up to $3,000; $156 for claims over $3,000 $200 to file, plus additional costs for applications and trials exceeding 3 days
Maximum Awards No maximum dollar amount, but generally award limited to amounts owed for past 12 months only - See ESA s.80 No maximum $5,000 $35,000 (as of June 1, 2017) No maximum
Type of Claim Statutory entitlements in the ESA (i.e. minimum wage, overtime, vacation pay, etc.) Discrimination in employment or hiring Any term express or implied in the contract; wrongful dismissal Any term express or implied in the contract; wrongful dismissal Any term express or implied in the contract; wrongful dismissal


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