A Guide to the Employment Standards Act

Chapters 1-10

The Employment Standards Act sets minimum standards for wages and conditions of employment in British Columbia. The following is a guide only. If you have specific questions about the Act or Regulation you may call:

1-800-663-3316 toll-free or 660-4000 in the Lower Mainland.

This guide is a summary of the main topics covered by the Employment Standards Act and Regulation. It is intended for general information only. If there are differences between this guide and the Act or Regulation, the legislation applies. The content is effective November 1, 1995.

1. WHAT IS THE EMPLOYMENT STANDARDS ACT?

The main purpose of the Employment Standards Act is to make sure that British Columbia workers receive at least minimum standards of wages and terms of employment.

To accomplish this, the Act establishes certain basic rights for employees and obligations for employers. The Act promotes fair treatment of employees and employers, fosters a productive and efficient work force and helps employees meet work and family obligations. The Act also sets up fair and efficient means of resolving disputes.

Informing Employees of Their Rights

The Act requires employers to display a statement of employees' rights in each workplace. Posters containing this statement are available from any Employment Standards Branch office.

Copies of the Employment Standards Act and Regulation may be purchased from:
Crown Publications Inc.,
521 Fort Street
Victoria, BC, V8W 1E7
Phone: 604-386-4636
Fax: 604-386-0221

2. WHO IS COVERED BY THE ACT?

Occupations Covered by the Act

The Employment Standards Act applies to most employees and employers in British Columbia. Exceptions include employees whose jobs come under federal labour legislation and those employees specifically excluded under the Act and Regulation. The Act applies to both full time and part time workers regardless of the number of hours that they work.

Occupations Not Covered by the Act

Some occupations which fall under provincial jurisdiction are not covered under theEmployment Standards Act; for example, doctors, lawyers, architects, dentists, insurance agents, Chartered Accountants and realtors. Other exclusions include sitters, secondary school students working at their schools, newspaper carriers who attend school and work 15 hours a week or less, and persons receiving government financial assistance who participate in certain government-sponsored employment programs. A number of other occupations are excluded from coverage under certain parts or sections of the Act and Regulation. For a more complete description of these exclusions, please refer to the Regulation.

Federal Jurisdiction

Federal labour laws cover employees who work in areas of federal jurisdiction. Those employees include employees of the Government of Canada, its Crown Corporations, and the Armed Forces; railways, highway transport, telephone and cable systems, shipping and shipping services and pipelines which operate interprovincially or internationally; radio and television broadcasting including cablevision; air transport; and banks. Employees working in these areas are not covered by the Employment Standards Act . For further information contact Human Resources Development Canada toll-free at 1-800-668-5155 or 1-800-661-1997.

Unionized Employees

Employees who belong to unions are covered by collective agreements negotiated by their union and the employer. Collective agreements have as their basis the minimum standards set out in the Employment Standards Act . All collective agreements must meet or exceed the minimum standards of the Act . If they do not, then the Act would apply. For further information, please contact your local Employment Standards Branch office.

Other Laws

Other provincial statutes such as the Human Rights Act , the Labour Relations Code, the Skills Development and Fair Wage Act, and the Workers Compensation Act affect employees' rights and employers' obligations. In addition, much of our employment law is the result of court decisions. These decisions continually affect the interpretation and administration of the Employment Standards Act .

Minimum Standards

The Employment Standards Act sets minimum standards for terms and conditions of employment. An agreement between an employer and an employee which does not meet these standards is not enforceable. However, in certain circumstances, employers and employees can agree to vary a given standard with the Branch's approval see section 14 - Variances. Where an employer and an employee agree to terms of employment which exceed the standards set by the Act or Regulation, the Branch may enforce compliance with these agreed terms.

3. HIRING EMPLOYEES

Human Rights

The Employment Standards Act does not require employers to follow specific procedures when hiring employees. However, the Human Rights Act prohibits discrimination in employment advertisements and hiring on the basis of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex (including pregnancy), sexual orientation, age or criminal conviction unrelated to the employment. For further information contact the B.C. Council of Human Rights toll free at 1-800-663-0876.

False Representations

An employer may not try to hire a person by misrepresenting that a job is available, the type of work to be done, or the terms of employment.

No Charge for Hiring

An employer may not ask for or receive payment from a person in return for hiring that person. An employer may not accept payment from a third party to hire a person.

Employment Agencies

An employment agency may not charge a person for obtaining work for that person or for providing information about employers seeking employees.

Employment agencies must be licensed under the Employment Standards Act. Persons wishing to apply for a licence should contact their local Branch office.

Farm Labour Contractors

A farm labour contractor may not charge a person for hiring or obtaining work for that person, or for providing information about employers seeking employees.

Farm labour contractors must be licensed under the Act. Persons wishing to apply for a licence should contact their local Branch office. The Regulation also sets out requirements for farm labour contractors.

Child Employment

Anyone who wishes to hire a person under 15 years of age must apply for prior approval from the Branch and receive permission from the child's parent or guardian. If the child is a student, the Branch generally requires the permission of the child's school. On approval, the Branch will issue a permit setting out the conditions of the child's employment. Application forms are available at Branch offices.

Domestic Workers

A domestic is an employee who resides and works at an employer's residence, providing cooking, cleaning, child care and other services. Domestics are fully covered by the Act, including hours of work and overtime provisions. Anyone hiring a domestic worker must provide the domestic with a written contract setting out the terms of employment. These terms must include the job duties, hours of work, wages, and charges for room and board. Charges for room and board cannot exceed $325 per month.

A domestic's employer must register both the employer's and the domestic's name, address, telephone number and fax number with the Branch within 30 days of the domestic starting work, and inform the Branch of any changes to this information every 6 months.

4. PAYING WAGES

Minimum Wages

As of October 1, 1995, the minimum hourly wage is $7.00.

Minimum wages for live-in home support workers, resident caretakers and farm workers who harvest certain fruit and vegetable crops are set out in Part 4 of the Regulation.

Paydays

All employees must be paid at least twice a month. All money earned in a pay period must be paid within 8 days after the end of the pay period except annual vacation pay and wages credited to an employee's time bank see Chapter 7 - Overtime. A pay period may not exceed 16 days.

If An Employee is Terminated

The employee must be paid in full within 48 hours after being terminated or fired. If an employee resigns or quits, he or she must be paid in full within 6 days. If an employee cannot be located, the employer must pay the wages to the Branch within 60 days. The Branch holds these wages in trust for the employee..

Forms of Payment

Wages must be paid in cash, by cheque, bank draft or money order, or by direct deposit to an employee's bank account. Payment by direct deposit must be authorized in writing by the employee or by a collective agreement.

Wage Deductions

An employer may only make deductions from an employee's wages without the written agreement of the employee if the deductions are required or permitted by this or another Act of British Columbia or Canada. Examples of required deductions include those for income tax, Canada Pension Plan and Unemployment Insurance.

Wage Deductions Requested by Employees

An employee may request in writing that the employer pay part of his or her wages to a third party. This is called an assignment of wages. An employer must pay assigned wages to:

• a trade union under the Labour Relations Code (union dues)
• a charitable or other organization
• a pension or superannuation plan
• an insurance company for medical or dental coverage, and
• a person to whom the employee is required to pay maintenance under the Family Maintenance Enforcement Act.

An employer must also honour an assignment of wages authorized by a collective agreement, and may honour a written assignment by an employee to pay a debt. Assigned wages must be paid within one month of being deducted. To cancel an assignment, an employee must notify in writing both the employer and the person or organization being paid.

An employee is not required to pay any of the employer's business costs, including damage, breakage or loss. If any such payments or deductions occur, the Branch may recover them for the employee.

Employer Payments as a Term of Employment

An employer who agrees as a condition of employment to pay an amount on behalf of an employee to a fund, insurer or other person must pay the amount in accordance with the agreement.

Wage Statements

On paydays, an employer must give each employee a written wage statement for the pay period which includes the following information:

• the employer's name and address,
• the hours worked by the employee,
• the employee's wage rate, whether hourly, salary, flat rate, piece rate, commission or other incentive basis,
• the employee's overtime rate(s),
• the hours worked at the overtime rate(s),
• any money, allowance or other payment the employee is entitled to,
• the amount and purpose of each deduction,
• if the employee is paid other than by the hour or by salary, how the wages were calculated,
• the employee's gross and net wages, and
• any amounts withdrawn from the employee's time bank and how much remains.
•  

Once an employer has provided the employee with a wage statement, a new statement is not required if the new statement would be the same as the last one.

A wage statement may be provided electronically if requested in writing by an employee or the employee's trade union. An employee or trade union may cancel a request by notifying the employer in writing.

5. KEEPING RECORDS

Payroll Records

The Act requires an employer to keep, in English, for each employee, the following records at its principal place of business in British Columbia:

• the employee's name, date of birth, occupation, telephone number and residential address,
• the date the employment began,
• the employee's wage rate, whether paid hourly, by salary or on some other basis,
• the hours worked on each day, regardless of the basis by which the employee is paid,
• the benefits paid to the employee,
• the employee's gross and net wages for each pay period,
• the amount of and reason for each deduction from the employee's wages,
• the dates of the statutory holidays taken by the employee and the amounts paid,
• the dates of the annual vacation taken, the amounts paid, and the days and amounts owing, and
• the dates taken and amounts paid from the employee's time bank, and the balance remaining.

These records must be kept for 7 years after the employment ends.

Flexible Work Schedule Records

If an employer has implemented a flexible work schedule, the employer must keep all records relating to its approval for 7 years see Chapter 8 - Flexible Work Schedules.

Special Clothing Records

If an employer and employees have agreed that the employer will reimburse employees for the cost of cleaning and maintaining special clothing, the employer must keep records of the agreement and the amounts paid for 7 years see Chapter 12 - Special Clothing.

Statutory Holiday Substitution Records

If an employer and a majority of employees have agreed to substitute another day for a statutory holiday, the employer must keep records of this agreement for 7 years.

Employee Records

Although employees are not required by the Act to keep records, the Branch encourages employees to write down their hours of work on a daily basis. Such records may help resolve disagreements over hours worked and wages paid.

6. HOURS OF WORK

Hours-of-Work Notices

An employer must post notices which say when work starts and ends, when each shift starts and ends, and when meal breaks will occur. These notices must be posted where they can be read by all employees.

Shift Changes

An employer must give an employee 24 hours' notice of a change in shift unless the employee is paid overtime for the time worked or the shift is extended before it ends.

Meal Breaks

After working five hours in a row, an employee is entitled to a half hour meal break. An employee who is required to work or be available for work during a meal break must be paid for the break.

Split Shifts

A split shift must be completed within 12 hours from the start of the shift.

Minimum Daily Pay

An employee who starts work must be paid for at least 4 hours, even if the employee works less than 4 hours. If work is suspended for a reason completely beyond the employer's control (for example, unsuitable weather conditions), the employee must be paid the greater of 2 hours of the actual time worked.

A school student who starts work on a school day must be paid for at least 2 hours. On a non-school day, a student who starts work must be paid for at least 4 hours.

Where an employee reports for work but does not actually start working, the employee must be paid for at least 2 hours, unless the employee is unfit to work or does not comply with health and safety regulations established by the Workers Compensation Board.

Hours Free From Work

An employee must have at least 32 hours in a row free from work each week. If an employee works during this period, the employer must pay double time for the hours worked. An employee is also entitled to have 8 hours off between shifts unless the employee is required to work because of an emergency.

No Excessive Hours

An employer must not require or allow an employee to work excessive hours or hours harmful to the employee's health or safety.

7. OVERTIME

Overtime

The standard work day is 8 hours and the standard work week is 40 hours. An employee who works more than 8 hours a day or 40 hours a week must be paid overtime unless the employer has implemented a flexible work schedule or the Branch has granted a variance. Depending on the schedule worked, an employee could be eligible for daily overtime, weekly overtime, or both in the course of a week. However, daily overtime and weekly overtime are calculated separately.

For purposes of calculating overtime, the work week runs from Sunday through Saturday.

Daily Overtime

After working 8 hours in a day, an employee must be paid time and a half for the next 3 hours and double time for all hours in excess of 11.

Weekly Overtime

An employee who works more than 40 hours in a week must be paid time and a half for the next 8 hours, and double time for all hours in excess of 48. In calculating the total hours worked for weekly overtime purposes, only the first 8 hours worked on each day are counted.

In a week with a statutory holiday, an employee who qualifies for the holiday must be paid weekly overtime at time and a half after 32 hours, and double time after 40 hours. Any time worked by the employee on that holiday is not included in calculating weekly overtime.

Overtime for Farm Workers

A farm worker who works more than 120 hours within a 2 week period must be paid double time for all hours in excess of 120.

Banking Overtime in an Employee's Time Bank

At an employee's written request, an employer may establish a time bank and credit the employee's overtime wages to it instead of paying the wages as they are earned.

An employee may at any time request the employer to pay out all or part of the wages credited to the bank. The employee may also request time off with pay for some mutually-agreed period, or request in writing that the bank be closed. Upon termination, or upon receiving an employee's request to close the bank, the employer must pay the outstanding balance to the employee.

All banked wages must be drawn out by the employee or paid out by the employer within 6 months of being earned. If several employees have time banks, the employer may set a common date for paying out the banked time so long as all wages are paid within 6 months of being earned.

8. FLEXIBLE WORK SCHEDULES

The Act permits an employer to implement certain work schedules under which an employee will work more than 8 hours on a given day or 40 hours in a given week without being paid overtime. Called "flexible work schedules," they follow certain repetitive cycles which over their course average no more than 8 hours a day or, with one exception, 40 hours a week.

Employees Not Covered by A Collective Agreement

Where employees are not covered by a collective agreement, a flexible work schedule must meet all of the following conditions:

• the schedule must be one permitted by the Regulation,
• the schedule must cover at least 26 weeks,
• the schedule must be approved by a least 65 per cent of the affected employees, and
• the employer must provide the Branch with a copy of the schedule within 7 days of its approval by the employees.

Prior to being approved by the employees, the Regulation requires the employer to post for 10 days an information bulletin which describes the proposed schedule.

An employer may cancel a flexible work schedule at any time. The Branch may also cancel the schedule if it receives a written complaint from one of the affected employees, and is satisfied that the employer either did not follow the procedure in the Regulation or unduly influenced, intimidated or coerced any employees to approve the schedule. Unless cancelled earlier, a schedule expires 2 years after it was approved, but may be renewed with the approval of 65 per cent of the affected employees.

Where an employee on a flexible work schedule works more than an average of 8 hours a day or 40 hours a week over the shift cycle, overtime wages must be paid as set out in the Regulation.

Employees Covered by a Collective Agreement

Where employees are covered by a collective agreement, a flexible work schedule must:

• run for at least 26 weeks,
• consists of a shift cycle of days at work and days off work that repeats over a period of up to 8 consecutive weeks,
• allows each affected employee to work during each shift cycle an average of at least 35 and not more than 40 hours per week at the employee's regular wage, and
• has been approved by a trade union representing the affected employees.

Where an employee on a flexible work schedule works more than an average of 8 hours a day or 40 hours a week over the shift cycle, overtime wages must be paid as required by the collective agreement.

9. STATUTORY HOLIDAYS

Statutory Holidays in British Columbia

There are 9 statutory holidays in British Columbia:

• New Year's Day
• Good Friday
  
• Victoria Day
  
• Canada Day
  
• British Columbia Day
  
• Labour Day
  
• Thanksgiving Day
  
• Remembrance Day and
  
• Christmas Day.

Easter Sunday, Easter Monday and Boxing Day are not statutory holidays.

Eligibility

Once an employee has worked for an employer for 30 calendar days, the employee is entitled to statutory holidays with pay. (Note: a manager as defined in the Regulation is not entitled to statutory holidays - see definition of "manager"in Chapter 17.

Statutory Holiday Pay

• An employee with a regular schedule of hours who has worked at least 15 of the 30 calendar days prior to a statutory holiday is entitled to a regular day's pay for the holiday.
• An employee who has worked irregular hours on at least 15 of the 30 days prior to a statutory holiday is entitled to an average day's pay for the holiday. This amount is calculated by dividing the total wages, excluding overtime, earned in the 30 day period by the number of days worked.
• An employee who has worked fewer than 15 of the 30 days prior to a statutory holiday is entitled to pro-rated statutory holiday pay. This amount is calculated by dividing the total wages earned in the 30 day period by 15.
• If an employee is on annual vacation, the employee's vacation days and vacation pay are counted as days worked and wages earned when calculating statutory holiday pay.

Working on a Statutory Holiday

An eligible employee who works on a statutory holiday must be paid time and a half for the first 11 hours and double time after 11 hours. The employee must also be given an alternate day off with pay. The employee may credit the wages for the alternate day off to his or her time bank, if the employee has one.

The employer must schedule the alternate day off:

• before the employee's annual vacation,
• before the date the employment terminates, or
• within 6 months of the statutory holiday if the wages were credited to the employee's time bank,

whichever is earliest.

An employee not eligible for the statutory holiday who works on the holiday may be paid as if it were a regular work day, and is not entitled to an alternate day off.

Statutory Holiday on a Day Off

Where a statutory holiday falls on a non-working day for an eligible employee, the employee must be given another day off with pay. This day off must be scheduled and paid as outlined above.

Substituting Statutory Holidays

Where an employer and a majority of affected employees agree, the employer may substitute another day off for a statutory holiday. The Act and Regulation apply to the substitute day as if it were a statutory holiday.

10. LEAVES AND JURY DUTY

The Act requires employers to grant employees the following periods of unpaid leave. An employee does not need to work for a specified period to be eligible for leave.

Pregnancy Leave

A pregnant employee is entitled to up to 18 consecutive weeks of unpaid pregnancy leave. This leave may start no earlier than 11 weeks before the expected birth date, and must end no earlier than 6 weeks after the birth date unless the employee requests a shorter period.

If pregnancy leave is first requested after the birth of a child or after termination of the pregnancy, an employee is entitled to up to 6 consecutive weeks of leave beginning on the date of birth or termination date.

An initial period of leave may be extended up to 6 weeks if the employee is unable to return to work for reasons relating to the birth or termination of the pregnancy.

A request for pregnancy leave during the pregnancy must be made in writing at least 4 weeks before the proposed start date. A request to return from leave earlier than 6 weeks from the birth date must be made in writing at least one week before the proposed return date.

An employer may require an employee to provide a doctor's certificate in support of a request for leave or a leave extension.

Parental Leave for Birth and Adopting Parents

A birth mother, a birth father and an adopting parent are entitled to up to 12 consecutive weeks of unpaid parental leave. A birth mother must begin parental leave immediately after her pregnancy leave unless she and the employer agree otherwise. A birth father must begin the leave within 52 weeks after the birth of the child, and an adopting parent within 52 weeks after the child is placed with the parent.

An initial period of parental leave may be extended up to 5 weeks if the child requires an additional period of parental care.

A request for parental leave by a birth parent must be made at least 4 weeks before beginning the leave.

An employer may require the employee to provide a doctor's certificate or other evidence that the employee is entitled to the leave or leave extension.

Family Responsibility Leave

An employee is entitled to up to 5 days of unpaid leave per employment year to meet responsibilities related to the care, health or education of any member of the employee's immediate family.

"Immediate family" means the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee, and any person who lives with the employee as a member of the employee's family. "Employment year" is defined in Chapter 17.

Bereavement Leave

An employee is entitled to up to 3 days of unpaid leave on the death of a member of the employee's immediate family.

Jury Duty

An employee who is required to attend court as a juror is considered to be on unpaid leave for the period of the jury duty.

Employment Considered Continuous

If an employee is on leave or jury duty, employment is considered continuous for the purposes of calculating annual vacation and termination entitlements, as well as for pension, medical or other plans of benefit to the employee. An employer must also continue to make payments to any such plans unless the employee chooses not to continue with his or her share of the cost of a plan. The employee is also entitled to all increases in wages and benefits which the employee would have received if not on leave.

Conditions of Employment Remain the Same