Employment Standards Act (ESA) in British Columbia

The (ESA) Employment Standards Act of British Columbia serves to set out the minimum standards that must be applied in most places of employment in British Columbus and is administered by the Ministry of Labour. Their branch called the employment standards branch is tasked with seeing it being implemented and adhered to.

As it stands at the moment (2014) the minimum wage in British Columbia is $10.25 per hour and applies to all employees regardless of the method of calculation. Whether on an hourly, commission or incentive basis. Even staff on a straight commission must receive the minimum wage for the total number of hours worked in a specific pay period.

Example:

Total Commission Earned                        $1,000

Total Hours Worked for the period            80.00

Total Wages per Hour ($1,000 / 80)         $12.50 per hour

Covering the wages of all people employed as live-in support workers, resident caretakers and hand harvesting farm workers are covered in the Employment standards act and regulations.

Employees working for establishments serving liquor are covered in the clause for liquor servers minimum wages. This wage is currently $9.00 per hour and tips or gratuities received are not included as part of their wages – because there is no guarantee of the total tips/gratuities received any given pay period. They will therefore receive their minimum wages in addition to any tips or gratuities that receive from their clients.

There is further a provision stating that if a person reports for work they must be paid at least two hours immaterial of whether they worked less than that. In the case of employees that are normally required to work eight hours per day, they must receive at least 4 hours wages when reporting for duty. Again the provision apply that it is irrespective of whether they worked for less hours.

When work is stopped for any reason whatsoever all employees must be paid the minimum of 2 hours or the amount of time worked if more than two hours.

The only time employees are paid for actual time working is if they report for duty and found to be unfit for their task and employees that is not in compliance with Occupational health and safety regulations as stipulated by WorkSafe BC.

The act stipulates meal-breaks of thirty minutes after 5 hours of work and if working during this break, must be paid for it. Coffee breaks are not in the act.

The Employment Standards Act of BC stipulates that employees must be paid a minimum of twice a month with eight days of the pay period of less than 16 days by means of a written or electronic pay stub. The stub must record details of times worked, pay rate and any deductions. Records are required to be kept for two years. On termination of employment the employee must be paid within 48 hours or on resignation within 6 days.

Overtime covered by the act is 1.5 times the rate for work done after 8 hours and 2.0 rate after 12 hours. The weekly calculation is based on 40 hours per week.

Any agreements to average schedule work must be in writing, with a starting and closing date clearly specified, the period is from 1 to 4 weeks.

Example:

An employee whose work schedule calls for a 10 hour shift works 12 hours.  The employee must be paid time-and-a half for the extra two hours added to the work schedule for that day.

• Double time for all hours worked over 12 in a day; and
• Time-and-a-half for all hours worked in excess of an average of 40 hours per week over the period covered by the agreement.

If employers require staff to wear a uniform, they must provide and maintain this at no cost to their workers. Dress code and personal safety equipment is not considered a uniform under British Columbia’s Employment StandardsAct.

Only legal deductions such as income tax, CPP and EI can be made from an employee, all other deductions must be in writing. Business losses such as shortages, damage and others cannot be deducted from the employee wages.

The rules regarding statutory holidays cover the ten statutory holidays in British Columbia and specify that employees must have worked at least 15 of the 30 calendar days before the holiday  to qualify. In British Columbia, Easter Sunday and Monday as well as Boxing Day is not considered statutory holidays. These exclude arrangements covered in an averaging agreement. The wages for staff working on these holidays are 1.5 times the rate for first 12 hours and 2.0 times thereafter.

The ten statutory holidays in British Columbia are:

Under the act regular earnings include wages and vacation pay but exclude overtime. Overtime is considered premium pay.  Days worked is all days for which a wage is received as well as vacation pay. Workers under the age of fifteen must have written consent from parents and workers under the age of 12 must have permission from the Director of Employment Standards.

On termination of service, workers with 3 months service should receive 1 week pay, workers with I year service must receive 2 weeks wage and after 3 years of service it should be 1 week for each completed year of service. This applies only for termination without cause.  For Just Cause the employer must be able to prove the reason for terminating with cause . The act also stipulates additional pay if more than 50 employees are terminated at a single location within a 2 month period.

Annual paid vacation leave as defined by the act is 2 weeks after 1 year of service and this increase to 3 weeks leave after 5 years of service. All leave must be used within 12 months of becoming due. Vacation pay is set at 4 percent and increase to 6 percent after 5 years of employment.

ESA further covers unpaid leave as follow. Pregnancy leave of 17 weeks for maternity and could be extended to 6 weeks for medical reasons. Birth mothers can take up to an additional 37 weeks unpaid leave.As well fathers have the option to take leave upon the birth of the baby. This could be extended to 6 weeks for medical reasons. Four weeks’ notice to the employer is required.

Family responsibility leave is 5 days for each completed year of service and compassionate leave is determined at 8 weeks with a medical certificate submitted stated that a great risk of death is possible within the following 26 weeks.

On death of an immediate family member like parents, spouses, siblings and children, the employee is entitled to 3 days of unpaid leave.

Both jury duty and reservists’ leave is considered unpaid leave under the act.

To qualify for these the employee should their employer as much notice as possible and provide the reasons for the leave, the employer may not terminate an employee because of the above factors.

When a collective agreement is entered into, it must meet the standards of the act and while some items may be negotiated outside the act it must be in writing. Any provision not covered will be deemed as being part of the employment standards act. The act made provision for a grievance procedure to be followed if a dispute arises. Mostly employees and their employers should resolve it among themselves and there is a self-help kit available online for this process. Only if this fails will the Employment Standards Branch assist to find a solution.

Employment Standards Branch of the Ministry of Labour Official Website: http://www.labour.gov.bc.ca/esb/esaguide/

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