1
Q
ESA: are there some exclusions?
A
Yes. legislation covers most EE but there are exemptions regarding some provisions
- EE cannot waive minimum entitlements in contracts/agreements
- ER may offer better benefits
2
Q
How can you enforce ESA?
A
File complaint at BC Employment Standards Branch
3
Q
What provisions apply to federal workers’ minimum conditions?
A
Canada’s Labour code
4
Q
Who are excluded from BC ESA?
A
statutory employees:
- members of professional associations (Dr., solicitors, engineers, accountants)
- workers in job-creation & work-experience programs
- EE in federally-regulated industries (Canada Labour code)
- Managers (SOME sections are n/a)
- independent contractors & self employed individuals
5
Q
Are unionized EEs exempt from ESA?
A
collective agreement governs certain areas, otherwise by ESA
6
Q
How does ESA apply to managers/supervisors?
A
not covered by overtime & hours
title is insufficient to qualify as MGT
must have hiring and firing authority
7
Q
What is N/A to professional employees (teachers/instructors), firefighters / police officers? (5)
A
- minimum wage
- hours of work
- overtime pay
- paid statutory holidays
- vacation pay
8
Q
Employers’ general responsibilities (3)
A
- record keeping 2 years after termination
- payment of wages (semi-monthly, no longer than 1 month, partial payment prohibited)
- termination of employment (fired by ER: 48 hours, quit: 6 days)
9
Q
When are deductions from paycheck allowed? (4)
&
When not allowed? (1)
A
- per statute (EI, CPP)
- Court order (garnishment order / child support - no more than 30%)
- collective agreement (union dues)
- authorized by employee (assignment/contribution re benefits)
- not allowed: business costs/damage to equipment under control of EE
10
Q
wage statement (2)
A
- provide written / email statement on or before payday
2. info provided including: hours worked, wage rate, gross and net wage, amount, deductions & purpose
11
Q
Variance of employment standard process,
- topics to apply
- What % workers affected requires EEs’ consent & understanding?
A
- employer applies to director of employment standards
- work hours
- overtime wages
- free hours
- split shift
- special clothing
- 51%
12
Q
Who does the minimum wage in BC not apply to?
A
sections 15-18 of BC regulations, lower rates apply to:
- live-in-home support
- resident caretakers
- live-in/camp leaders
- farm workers employed on ‘piece-work’ basis
13
Q
what is the 2 hour rule?
what happens if shift is cancelled?
What is the exemption to this rule?
KNOW THIS SHIT
A
- if an EE is scheduled to work, must be paid for a min of 2 hours
- if shift cancelled:
- pay for 2 hours if original shift was 8 hours or less
- pay for 4 hours if shift was over 8 hours
the 4 hour rule is reduced to 2 hours if employer must cancel shift due to “reasons completely outside ER control” (weather, power outage, fire on premises)
Exemption:
- EE unfit to work (intoxicated)
- violates health & safety rules
- fails to report for work
14
Q
What is the excessive hours rule?
A
- ER may not require employee to work “excessive hours” or “hours detrimental to health or safety”
15
Q
What do the work hours provisions cover? (4)
A
- excessive hours
- hours free from work
- eating periods
- breaks
16
Q
What is the hours free from work rule?
&
If not, what does EE get?
A
EEs must have:
- 8 consecutive hours off work
- 32 consecutive hours off every workweek (1 day, 8 hours)
- if EE works within 32 hour window, pay = time +half
17
Q
What is the meal break/eating periods rule?
Conditions of unpaid / paid
A
1/2 hour every 5 hours or without pay
if unpaid:
- cannot require EE stays on premises
if paid:
- required to stay on premises
18
Q
What is the coffee break rule?
A
Not required to provide breaks; if provided, EE must stay on premises and be paid
this does not count smoke breaks; ER does not have to accommodate smoke breaks but optional
19
Q
What is the overtime pay rule?
A
- Overtime pay is separate from limits of hours of work
- 8/40 rule
- employers must pay 1 + 1/2 times regular rate for all hours worked beyond 8 hours per workday
Exceptions:
- Averaging agreement
- MGT/supervisors (Employer must keep records)
20
Q
What is the Managerial exemption rule?
A
managers (hire & fire authority) are exempt
- Cab drivers/Teachers/Instructors/ Wilderness Guides etc.
- Salaried employees who are not exempted, are eligible for overtime pay
21
Q
What is the Averaging agreements rule?
A
- Employer + employee may agree to average working hours across a period ranging from 1 to 4 weeks
If averaging agreement in place: - Overtime only required if employee works more than average of 40 hours per week over agreement period (max. 4 weeks) - Allows longer hours in some weeks, - balanced by shorter hours in others - Employers cannot impose/ Employees must agree
22
Q
What is the banking of overtime rule?
A
- Employee may request in writing to put overtime into “time bank” instead of being paid overtime
- Employee has options for using
–‘banked’ time:
– Take paid time off or
– Be paid for hours or
–Close the ‘bank’ (Be paid in time or
money within 6 months)
23
Q
What is the Annual vacation rule?
A
- Have minimum of 12 months of continuous service with employer
- Employee resigns before completing 1 year?
Not entitled to vacation time, only vacation pay - Vacation entitlement starts at 2 weeks (after 1 year’s employment)
- Time off work for statutory leave etc. counts towards seniority entitlement for vacation
- Employee’s choice when to use leave but:
- -In some cases e.g. seasonal plant shutdown employer entitled to determine when vacation must be taken
- -Must be provided within 12 months of when earned
24
Q
What is the vacation pay rule?
A
- 4% of Wages - Equates 2 Weeks’ Paid Leave
- Employees are entitled to vacation pay if worked for employer for least 5 calendar days
- Equal to 4% of wages earned during 12 month period for which the vacation pay is given
- After 5 consecutive years: Vacation pay is 6%
- Entitlement begins immediately from 1st hour of employment
- Employee resigns? Entitled to vacation pay earned up to resignation
25
What is the statutory holidays pay rule?
- Employee must have employed at business at least 30 days in 12 months preceding the holiday
- Employees do not forfeit right to paid statutory holiday if it falls during their vacation / scheduled day off
- If employee works on holiday, pay is X 1.5 BUT
- - Parties may substitute alternative days off if majority of employees + the employer agree
E.g.: Industries: Retail/Restaurant + Entertainment/ Tourism/Factories/ Admin. Positions
26
What is the maternity leave rule?
- 17 (BC) consecutive weeks’ unpaid leave
- Only available to birth mothers
- May be eligible for EI benefits*: 55% of weekly wages with max. of $562 p/w (15 weeks only)*
- May extend by adding parental leave
- Sick leave (if necessary) is separate
- Employee forfeits remainder of leave if returns to work early
- Re Employment insurance entitlement “EI”:
If accumulated 600 insurable hours
(equates to 20 weeks@30 h/w) 52 weeks
(thus 1 year) prior to start of claim
27
What is the parental leave rule?
- 69 consecutive weeks’ unpaid leave, shared btw 2 parents,
-- EI if eligible
Max. of $337 for max. of 69 weeks (sliding scale)
- 2 options:
- -Std.: 40 weeks at 55% of weekly wages
- -Extended (69 weeks at 33% of weekly)
- Available to any new parent
(Birth mother/father + Same-sex partner + Adopting)
- Non-birth parent: 62 weeks starting within 78 weeks after birth
- Mom: If added to pregnancy leave, must start immediately after end of pregnancy leave period
- Employee to give 4 weeks’ notice of taking leave
28
What is the family responsibility & death leave rule?
family responsibility:
- up to 5 unpaid days
(care of child/immediate family/educational responsibilities)
Child under 19 years' death:
- up to 104 weeks' unpaid leave (2 years)
- also if family member dies - aka- bereavement leave
29
What is the child disappearance leave rule?
- Employee entitled to child disappearance leave 42 weeks (1 year) unpaid (continuous)
- If child (under 19 y) disappears as a result of a crime
- Child found: Parent is entitled to remain on leave
for 14 days
30
What is the compassionate care leave rule?
- 27 weeks’ leave in 52-week period (1 year) to care for ‘family member’ with medical condition posing
serious risk of death
(E.g.: Godmother receiving chemo/ Recuperating after brain injury / Organ transplantation)
- Need med. certificate
- ‘Family member’?
Def. broader than “immediate family”
Incl. many relationships
akin to ‘like close relative’
31
What is the Jury Duty rule?
- Available for anyone required by law to serve as juror
- Unpaid (employer does not have to pay) but
- Entitled to money from Govt. to set off time off work
32
What is the Reservists' leave rule?
- Unpaid leave
- Employer not compelled to pay premiums of benefits during leave
- Applies to members of reserve force
of the Canadian Forces
- Reserves are paid by govt.
- Employee required to give employer
notice of start and end date
33
What rights are you entitled to during statutory leaves?
- Statutory leave ends: Employer must reinstate employee to same/ comparable position
- Entitled to same earnings + benefits prior to leave
- Employer’s operations suspended: Employer must reinstate if operations resume
- For all leave:
- -Employer continues to pay premiums for benefits during leave
- - Employees cannot be penalized for eligibility to take/planning to take/taking statutory leave
34
What is the administration & enforcement of rights to leave process?
- Process generally starts with a complaint at ES (employment standards) Branch (During employment/within 6 months of last day of work)
- Complaints re hiring process:
- -Deadline 6 months from date of alleged violation
- -Deadlines: Director of Employment Std may extend
Unionized employees: Collective agreement
- Employees cannot sue in court for violation of ESA’s minimum standards
- Claims for wrongful dismissal/ payment in lieu of notice must go to a lawyer & court
- - Based on contract + pursued in court + together
35
What is the role of the employment standards branch (ESB)?
- Encourage voluntary compliance
- Initiate proactive inspections
- Investigate complaints + provide remedies
-Employees encouraged to resolve issues self
Self-help kit available on gvt website
If employee proceeds with complaint:
1. ESB gives employer opportunity to respond
2. Director of ESB has full investigative powers
3. Gives directive/ decision e.g.:
Compel witnesses, inspect workplace + records, etc.
36
Employment Standards Branch (ESB) issues determination so ER must:
1. comply with ESA requirement/reinstate EE
2. cease wrongful act/pay wages
3. post notice of contravention in workplace
4. compensation / make other orders
- may apply to appeal decision of director at employment standards tribunal "EST"
- EST decisions not appealable but subject to judicial review
Labor Law
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