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

For provincially regulated employees, the ''ESA'' sets the minimum standards for how an employer can act during the course of employment. 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.  

See V.C.5: Exceptions to the General Rule (Specialty Professions) to determine whether the ''ESA'' applies to the employee in question. See [[{{PAGENAME}}#6. Hours of Work and Overtime Pay | V.A.6: Hours of Work and Overtime Pay]] to determine if the employee is exempt from overtime.

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''

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.

An employment agency is any person or company that recruits employees for employers for a fee. All employment agencies must be licensed and they must keep records. An employment agency may not receive any payment from a person seeking employment either for obtaining employment or for providing information respecting prospective employers. Any payment wrongfully received can be recovered under the ''ESA'', s 11.

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 12 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 on the [http://www.labour.gov.bc.ca/esb/talent/list.htm Employment Standards Branch website].  

Employing a child is an offence for which both the employee and the employer are liable. The ''ESA'' does not apply to certain types of employment such as babysitters and some students (''ES Regulation'', s 32).  

Section 9 of the ''ESA'' states that children under the age of 15 cannot be employed unless the employer has obtained written permission from a parent or guardian. The employer must have this written consent on file indicating that the parent or guardian knows where the child is working, the hours of the work, and the type of work. No person shall employ a child under the age of 12 years unless the employer has obtained permission from the Director of Employment Standards. In cases where permission from the Director is required, the Director also has the ability to set conditions of employment for the child. For complete details of conditions, see www.labour.gov.bc.ca/esb or call 1-800-663-7867.

As of September 15, 2015, the general minimum wage is $10.45 per hour for all persons in BC as indicated in Part 4 of the ''ES Regulation''. One exception to this is liquor servers, who are entitled to a minimum wage of $9.20. Since tips and gratuities are not wages, employees must be paid at least minimum wage in addition to any tips or gratuities they receive. 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''.  

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 $10.25 per hour.  

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)).  

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.  

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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.  

Entitlement to overtime pay may be affected by an employment contract. 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.

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).  

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.  

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%. 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.

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.  

The employer may request a medical certificate to verify an anticipated birth date or the date of pregnancy termination. Pregnancy leave may commence up to 11 weeks prior to the estimated date of birth, and no later than the actual birth date of the child; it ends between 6 and 17 weeks after the actual birth date. To request pregnancy leave for a period shorter than six weeks following the birth of the child or termination of the pregnancy, an employee must provide one week written notice to the employer and may have to supply a medical certificate confirming the employee’s ability to return to work. Parental leave can begin at any time within one year of the birth or adoption of the child and need not conclude within that year; however, it must all be taken in one block.  

'''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]]).