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Proposed Amendments to the Employment Standards Act

By Ryley Mennie, Lou Poskitt + Allison Sproule - May 24, 2019 under Business Advisory, MT+Co.

On April 29, 2019, the BC Government introduced Bill 8 – Employment Standards Amendment Act, 2019 (“Bill 8”), containing proposed changes to the Employment Standards Act (“ESA”). The Bill provides targeted adjustments rather than sweeping reform, all of which are designed to increase employee rights and protections.

If passed, Bill 8 will:

  • – increase protections for (and restrictions on) underage workers;
  • – create new leave provisions for survivors of domestic violence and those caring for critically ill or injured family members;
  • – impose minimum standards for collective agreements;
  • – extend the wage recovery period;
  • – regulate the collection and payment of tips/gratuities;
  • – remove the self-help kit requirement for employee complaints;
  • – require employers to notify employees of their rights under the ESA; and
  • – require employers to pay resigning employees for the lesser of their full notice period or their termination amount.

1. CHILD WORKERS

Since 2003, children as young as 12 have been permitted to work in BC with few restrictions.

Bill 8 raises the age of work to 16 years old. Workers between 16 and 18 years old would also be subject to restrictions: the amendments allow the government to prescribe a list of “hazardous work” and “hazardous industries”, and to create minimum ages—between 16 and 18—for each type of work or industry. Exemptions allow 14- and 15-year-olds to perform “light work” as prescribed, including tasks like stocking grocery shelves.

Consistent with the existing regime, children may still work in recorded and live entertainment with parental consent.

2. NEW LEAVE PROVISIONS: DOMESTIC VIOLENCE AND CRITICAL ILLNESS

Bill 8 creates two new unpaid, job-protected leave types for workers.
Under the proposed amendments, workers escaping domestic violence—including psychological or emotional abuse—are entitled to two separate types of leave. First, up to 10 non-consecutive days of unpaid leave to attend medical or counselling appointments, move to a new home, seek legal assistance, or prepare for legal proceedings. Second, workers are entitled to up to 15 weeks of unpaid leave to be taken all at once or, with the employer’s consent, in multiple blocks.
For workers with a critically ill or injured family member, the amendments allow up to 36 weeks of unpaid leave to care for a child, and up to 16 weeks to care for an adult.

3. COLLECTIVE AGREEMENTS

Currently, certain subjects—including overtime rates, annual vacation and statutory holidays—may be negotiated outside of the ESA for unionized workers. For these areas, minimum standards apply only where the collective agreement is silent on the issue.

Bill 8 eliminates the ability to negotiate around these minimum standards. All new collective agreements would be required to meet or exceed the standards set out in the ESA. Note, the proposed standards apply only to new collective agreements. Employers with existing collective agreements will not need to deal with this aspect of the proposed amendments until existing agreements expire.

4. WAGE RECOVERY

Under Bill 8, the wage recovery period is extended from 6 months to 12 months. In some cases the recovery period may be further extended to 24 months, including cases of “wilful or severe” contravention of the ESA.

5. TIPS/GRATUITIES

The amendments also protect employees’ rights to tips and gratuities, by prohibiting employers from withholding tips and gratuities, deducting from them, or requiring they be handed over to an employer. It also creates restrictions on tip pooling: employers would only be allowed to share in the tip pool where they regularly performed the same work as other employees in the pool—for example, a restaurant owner who also works as a server.

6. COMPLAINT PROCESS

Currently, employees are required to use a self-help kit and present it to their employer before filing a formal complaint with the Employment Standards Branch (“ESB”). In response to feedback that this process was ineffective and possibly discouraging to employees, Bill 8 eliminates the self-help kit requirement.
The Bill also mandates that all complaints accepted for resolution by the ESB be investigated, to combat the risk of the ESB prioritizing quick resolutions over necessary investigations.

7. NOTIFICATION REQUIREMENTS

Bill 8 requires employers to provide employees with standard information on their rights under the ESA, “in a form provided or approved by the director”. Details on the form and content of the information required to be provided have yet to be released.

8. RESIGNATION PAY

The proposed amendments would also affect situations where an employee has resigned with notice, and their employer wishes them to leave before the notice period is up. As long as the employee has been at the workplace for at least 3 months, an employer who wants to end the relationship immediately will have to pay a resigning employee the lesser of:

  • – their wages for the full notice period; or
  • – the amount they would otherwise be owed on termination.

9. OTHER PROPOSED CHANGES

  • – enforcement: the ESB has the discretion to waive or raise administrative penalties;
  • – licensing: farm labourer contractors and temporary help agencies must be licensed; if not, farm labourers will be presumed employees, and temp agencies will be presumed employers; and
  • – record keeping: employers must now keep records for 4 years (increased from 2 years) for the following: payroll (from the date of creation), averaging agreements (from the date of expiry), and reimbursement records for the cleaning/maintenance of special clothing.

As mentioned above, the proposed changes will increase employee rights and protections, albeit in finite, targeted ways. While the Bill incorporates several recommendations from the BC Labour Institute’s Report on the Employment Standards Act, many of the report’s broader recommendations have yet to be addressed. Greater reform may be forthcoming. For now, Bill 8 does little to address the challenges of the modern workplace, where near-constant connectivity blurs the line between work and home life.

If you have any questions about Bill 8, limiting your business’ liability under the ESA, or ensuring your workplace meets statutory minimums, don’t hesitate to get in touch with Ryley Mennie or Lou Poskitt.