Changes to British Columbia’s Employment Standards Act

12 juin 2019 | Sabrina Anis

( Disponible en anglais seulement )

On May 30, 2019, British Columbia’s Bill 8 – Employment Standards Amendment Act (“Bill 8”) received Royal Assent.  Bill 8 made significant changes to the Employment Standards Act (the “ESA” or the « Act ») following a British Columbia Law Institute Report on employment standards in the province.  These amendments, which are now in force, reflect largely employee-friendly changes.

Note that changes to the ESA have been accompanied by changes to the Labour Relations Code, discussed in more depth here.

The following are some of the key changes that employers should be particularly wary of going forward:

1. Applicability of the ESA to Collective Agreements

Since 2002, certain terms of collective agreements (e.g. relating to hours of work or overtime, statutory holidays, vacation, seniority retention recall, termination of employment and layoff) did not have to comply with the minimums provided for by the ESA. The ESA now requires that all of the main components of a collective agreement “meet or exceed” the requirements of the ESA.  However, employers are not required to comply with this change until the current collective agreements in force expire, and new collective agreements are negotiated.

2. Wage Recovery

Previously, the period over which an employee was able to recover owed wages was 6 months from the date a complaint was made or the date the employee’s employment was terminated. Bill 8 extends this period from 6 months to 12 months and provides the Director of the Employment Standards Branch the ability to prolong this period to 24 months in some circumstances.

3. New Protected Leaves

Bill 8 also introduced new unpaid leaves of absence for critical illness or injury and following incidents of domestic or sexual violence.

Employees who are caring for sick family members will be entitled to take up to 36 weeks of unpaid leave to care for a critically-ill child and up to 16 weeks of unpaid leave to care for a critically ill family member 19 years or older, with the possibility of extension.

Employees who are attempting to flee domestic violence will now be entitled to 10 non-consecutive days of unpaid leave in order to seek medical attention, obtain personal victim services or counselling services or to temporarily relocate. Such employees will also be able to receive up to an additional 15 weeks of consecutive unpaid leave.

4. Gratuities

The ESA now prohibits employers from deducting or withholding gratuities, or requiring an employee to return or give the employee’s gratuities to the employer, except in limited circumstances.  However, employers may withhold gratuities for the purpose of distributing pooled tips amongst employees.

5. Resignation

Bill 8 clarifies an employee’s entitlements following a termination during a resignation period.  If, following an employee’s resignation,[1] the employer terminates that employee, the employee will be entitled to the lesser of the wages they were to earn during the resignation period, or the pay in lieu of notice to which they are entitled under the ESA.

6. Child Employment Protections

The age that a child may begin work has increased from 14 years to 16 years.  However, children who are aged 14 and 15 may perform “light work” under the new amendments, including, for example, stocking shelves at a grocery store. Restrictions regarding children performing hazardous work were also put in place.  These changes will come into force by regulation by the Lieutenant Governor in Council.

7. Additional Changes to the ESA

The ESA now requires that employers make available or provide to each employee information about the rights of the employee under the ESA.

The amendments to the ESA also include the elimination of the self-help kit as a requirement before filing a complaint, changes to the services provided by the Employment Standards Branch, changes to the provisions regarding assignment of wages, changes to the definition of “immediate family” for ESA purposes, and more stringent requirements for employer record-keeping.

 

While not all of the changes under Bill 8 commence immediately, many of the above changes have already come into effect.  If you have questions about how Bill 8 may affect your business operations, do not hesitate to reach out to a member of Miller Thomson’s Labour and Employment Group.

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[1] The employee must have provided at least three months of service.

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