A Guide to the Employment Standards Act

Chapters 11-16

Frequently Asked Questions, and Branch Office Locations

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.

11. ANNUAL VACATION

Annual Vacation Entitlement

An employee is entitled to an annual vacation of 2 weeks after 12 consecutive months of employment, and 3 weeks after 5 consecutive years of employment. There is no entitlement to annual vacation in the first year of employment.

An employer must schedule an employee's vacation in periods of one or more weeks unless the employee requests otherwise, and must ensure the employee takes the vacation within 12 months of earning it.

An employer may use a common date for calculating the annual vacation entitlement of all employees so long as no employee's right to an annual vacation or vacation pay is reduced.

An employee's period of consecutive employment is not interrupted by the sale, lease or transfer of a business.

Vacation Pay

In the first 4 years in which an employee is entitled to take annual vacation, the employer must pay vacation pay of at least 4 per cent of all wages paid to the employee in the preceding year. In the fifth and following years of entitlement, the employer must pay vacation pay of at least 6 per cent of total wages from the previous year. Any vacation pay received by an employee is counted as part of the total wages paid in a particular year.

Vacation pay is payable at least 7 days before the start of the annual vacation, or on regular pay days if agreed by the employer and the employee, or by a collective agreement.

An employer cannot reduce an employee's annual vacation or vacation pay because the employee was paid a bonus or sick pay, or was previously given a vacation longer than the minimum. However, these vacation entitlements may be reduced if an employee took annual vacation in advance at the employee's written request.

A person employed less than 5 calendar days is not entitled to vacation pay.

12. SPECIAL CLOTHING (UNIFORMS)

If an employer requires an employee to wear special clothing, including a uniform or a specific brand of clothing, the employer must provide, clean and maintain it.

Where the employer and a majority of employees agree that the employees will clean and maintain the clothing, the employer must reimburse the employees for these costs. This agreement is binding on all employees at the workplace who are required to wear special clothing.

An employer must not withhold wages or require a deposit from an employee for special clothing provided by the employer.

An employer is required to keep records of any agreements and amounts reimbursed for 7 years.

13. TERMINATION OF EMPLOYMENT

Compensation Eligibility

An employee who is terminated is eligible for compensation based on the following formula:

• after 3 months' consecutive employment, 1 week's pay,
• after 1 year, 2 weeks' pay, and
• after 3 years, 3 weeks' pay, plus 1 week's pay for each additional year of employment to a maximum of 8 years.

A week's pay is calculated by totalling the employee's wages, excluding overtime, earned in the last 8 weeks in which the employee worked normal hours, and dividing this amount by 8.

An employee's period of continuous employment is not interrupted by the sale, lease or transfer of a business.

No Compensation Required with Written Notice

No compensation is required if an employer gives an employee advance written notice of termination which is equal in weeks to the number of weeks' pay for which the employee is eligible.

An employer may also give an employee a combination of notice and compensation equal to the weeks' pay for which the employee is eligible.

An employee cannot be on vacation, leave, strike or lockout, or be unavailable for work due to medical reasons during the notice period. If employment continues after the notice period ends, the notice is of no effect. Once notice has been given, the employer may not alter any condition of employment, including the wage rate, without the employee's written consent.

No Notice or Compensation Required

An employer is not required to give notice of termination or pay compensation on termination if:

• the employee quit or retired,
• the employee was dismissed for just cause,
• the employee worked on an on-call basis doing temporary assignments which he or she could accept or reject,
• the employee was employed for a definite term,
• the employee was hired for specific work to be completed in 12 months or less,
• it was impossible to perform the work because of some unforeseeable event or circumstance (other than bankruptcy, receivership or insolvency),
• the employee was employed at a construction site by an employer whose principal business is construction,
• the employee refused reasonable alternative employment, or
• the employee was a teacher employed by a board of school trustees.

If a definite term or specific work is extended for at least 3 months past its scheduled completion, the definite term and specific work exceptions described above would not apply.

Temporary Layoff

An employer is not required to give notice of termination or pay compensation if an employee is laid off temporarily.

A temporary layoff becomes a termination when:

• a layoff exceeds 13 weeks in any period of 20 consecutive weeks, or
• a recall period for an employee covered by a collective agreement has been exceeded by more than 24 hours.

A week of layoff is a week in which an employee earns less than 50% of the his or her weekly wages at the regular rate, averaged over the previous 8 weeks.

When a temporary layoff becomes a termination, the date of layoff becomes the termination date and the employee becomes entitled to compensation as described above.

A layoff other than a temporary layoff is considered a termination.

Branch May Deem Employment Terminated

If an employer substantially alters a condition of employment, the Branch may determine that an employee's employment has been terminated. If the Branch makes such a determination, the termination provisions of the Act apply.

Group Terminations

Where an employer intends to terminate 50 or more employees at a single location within 2 months, the employer must give written notice of group termination to each employee affected. The employer must also notify the Minister of Labour, and any trade union which represents the employees. The length of notice depends on the number of employees to be laid off. If notice is not given or is shorter than required, termination pay in lieu of the deficient portion of the notice must be paid. Group termination requirements are in addition to individual termination requirements, and the two notice periods may not coincide. For further information, please refer to Part 8 of the Act.

Employees Covered by Collective Agreements

Variations of the individual and group termination provisions apply to employees covered by collective agreements. For further information, please refer to Part 8 of the Act.

Other Laws

Employers and employees should be aware that other laws, including the Human Rights Act and the common law regarding termination and wrongful dismissal, may apply to a particular termination even in cases where no compensation or notice is required under the Employment Standards Act.

14. VARIANCES

An employer and the employer's employees may jointly apply to the Branch to change or vary the following provisions of the Act:

• a time period specified in the definition of "temporary layoff" (section 1)
• paydays (section 17(1))
• special clothing (section 25)
• notice of a change in shift (section 31)
• minimum daily hours (section 34)
• maximum hours of work (section 35)
• hours free from work (section 36)
• overtime wages for employees not on a flexible work schedule (section 40)
• notice and termination pay requirements for group terminations (section 64)

A "variance" may be granted if the Branch is satisfied that the variance is consistent with the intent of the Act, and a majority of affected employees are in favour. The Branch may attach conditions to the variance. All variances include an expiry date, but may be renewed. An employer must post a copy of the variance where any affected employee can read it.

The procedure for applying for a variance is set out in section 30 of the Regulation.

15. COMPLAINTS

Filing a Complaint

Any person may file a complaint against an employer under the Employment Standards Act. The complaint must be in writing, and be delivered to a Branch office within 6 months after the alleged contravention. Where the complaint is from a terminated employee, it must be made within 6 months after the last day of employment. Complaint forms are available at any Branch office.

Confidentiality

Anyone filing a complaint may request that their identity be kept confidential. Their identity may only be disclosed if it is necessary for a proceeding under the Act, or the Branch considers disclosure to be in the public interest.

Employee Protection

An employer may not fire or threaten to fire an employee who files a complaint, nor may an employer coerce, intimidate or penalize a person because of a potential or actual complaint, investigation or appeal under the Act.

Investigating Complaints

The Branch is required to investigate every complaint filed unless:

• the Act does not apply to the complaint,
• the complaint is frivolous, trivial, or not made in good faith,
• there is not enough evidence to prove the complaint,
• a related proceeding has been commenced before a court, tribunal, arbitrator, or mediator,
• a court, tribunal or arbitrator has made a decision in the matter of the complaint, or
• the dispute that caused the complaint is resolved.

Branch staff may also conduct investigations without receiving a complaint, and may assist the parties in resolving a complaint or a matter under investigation.

Branch staff may enter workplaces, inspect and remove records, require persons to disclose information, and require the delivery of records.

Determinations and Remedies

If an investigation finds that the Act or Regulation have been contravened, the Branch may issue a decision, called a "determination," to require compliance. Any person named in a determination must receive a copy of it. A determination must include the reasons for the decision and details of any amounts payable and penalties imposed.

If a contravention involves leave, false representations concerning work, or mistreatment because of a complaint or investigation under the Act, the Branch may also require an employer to hire or reinstate a person and pay any wages lost by the contravention (or pay the person compensation instead of reinstatement), and pay the person's expenses incurred as a result of the contravention.

If the Branch determines that an employee's hours of work are excessive, it may order the employer to reduce the hours. Failure to comply with such an order may result in the employer being required to pay additional overtime. An employer must post a copy of any determination limiting employees' hours of work.

The Branch must dismiss a complaint if neither the Act nor the Regulation has been violated. The Branch may also vary or cancel a determination which it has previously made.

Limits on the Recovery of Wages

An employer may be liable for unpaid wages that became payable in the 24 months before the complaint was filed or the employment was terminated, whichever occurred first. In the case of an investigation without a complaint, an employer may be liable for any unpaid wages that became payable in the 24 months before the Branch notified the employer of the investigation. An employer may also be required pay interest on any unpaid wages.

Appeals

A person served with a determination has the right to appeal the determination to the Employment Standards Tribunal. An appeal must be in writing and be filed with the Tribunal within 8 days if the determination was personally served, or within 23 days if it was served by registered mail.

A person filing an appeal may ask the Tribunal to suspend a determination during the appeal period. The Tribunal may grant the request if the person pays to the Branch either the full amount payable under the determination, or a smaller amount set by the Tribunal. Interest accrues on all wages held in trust.

The Tribunal may cancel, confirm, or vary a determination with or without a hearing, or refer a matter back to the Branch. The Tribunal may also reconsider an order or decision which it has made.

Written copies of an order made by the Tribunal and the reasons for it must be made available to the person who requested the appeal and to other parties who were notified of the appeal.

16. ENFORCEMENT MEASURES AND PENALTIES

The Branch may use a variety of measures to enforce compliance with the Act, Regulation, and decisions made by the Branch and the Employment Standards Tribunal.

Monetary Penalties

An employer who fails to maintain or produce required records or issue employee wage statements may face an automatic $500 penalty. An employer who repeatedly violates other requirements of the Act may face escalating penalties of up to $500 per employee. Where a corporation is responsible for the contravention, an employee, officer, director or agent of the corporation who permits the contravention may also be penalized. A detailed description of requirements and penalties is set out in the Regulation.

Lien for Unpaid Wages

Unpaid wages are a lien, or legal claim, against the property of the employer and take effect at the time the wages were earned. These liens take priority over all other claims, including a claim of the Provincial Government, except a prior-registered mortgage or debenture against land.

Paying Interest on Unpaid Wages

An employer may be required to pay interest on unpaid wages owing to an employee. Interest is calculated from the date of the employee's termination or the date the complaint was filed, whichever is earlier, to the date of payment. Interest is charged at the prime lending rate of the government's banker.

Demands on Third Parties

If a third party is or will be indebted to a person who owes money to the Branch because of a determination or order under the Act, the Branch may demand that the third party pay all or part of their indebtedness directly to the Branch. If the third party does not comply with the demand, the Branch may begin collection action directly against the third party.

Court Judgment

A determination of the Branch or an order of the Tribunal may be filed at any time in Supreme Court and enforced as a judgment of the Court.

Seizing Assets

The Branch may seize personal or business assets of a person required to pay under a determination or order to satisfy the amount owing and the costs of the seizure.

Corporate Officer Liability

An officer or director of a corporation is personally liable for up to 2 months' unpaid wages per employee if the officer or director held office when the wages were earned or were payable. An officer or director is not liable for:

• compensation for termination or termination pay in the case of bankruptcy, receivership or insolvency,
• vacation pay which became payable after the officer or director left office, or
• money in an employee's time bank after the officer or director left office.

Security to Ensure Compliance

An employer who at any time has contravened a requirement concerning the payment of wages may be required by the Branch to post a bond, or to provide an irrevocable letter of credit or other security, to ensure compliance with the Act.

Publishing Violators' Names

The Branch may compile and publish information about contraventions of the Act and Regulation, including information identifying persons who committed the contraventions.

Employment Standards Glossary of Important Terms

Construction means the construction, renovation, repair or demolition of property or the alteration or improvement of land.

Conditions of employment means all matters and circumstances that in any way affect the employment relationship of employers and employees.

Day means a 24 hour period ending at midnight and "working day" means a 24 hour period beginning at the start of an employee's shift.

Determination means any decision made by the Director or delegate of the Director following an investigation under the Employment Standards Act. A determination may be appealed to the Employment Standards Tribunal.

Director means the Director of Employment Standards appointed under the Public Service Act and, in relation to a function, duty or power that the director has under section 117 of this Act delegated to another person, "Director" means that person.

Domestic means a person who:

• is employed at an employer's private residence to provide cooking, cleaning, child care or other prescribed services, and
• resides at the employer's private residence.

Employee includes:

• a person, including a deceased person, receiving or entitled to wages for work performed for another,
• a person an employer allows, directly or indirectly, to perform work normally performed by an employee,
• a person being trained by an employer for an employer's business,
• a person on leave from an employer, and
• a person who has a right of recall.

Employer includes a person:

• who has or had control or direction of an employee, or
• who is or was responsible, directly or indirectly, for the employment of an employee.

Employment year means a year beginning on a common date that is used by an employer to calculate family responsibility leave for all employees under section 52 of the Act, so long as this does not result in a reduction of any employee's rights under that section.

Farm labour contractor means an employer whose employees work, for or under the control or direction of another person, in connection with the planting, cultivating or harvesting of an agricultural product.

Manager means:

• a person whose primary employment duties consist of supervising and directing other employees, or
• a person employed in an executive capacity.

Producer means a person who engages the services of a farm labour contractor.

Regular wage means:

• if an employee is paid by the hour, the hourly wage,
• if an employee is paid on a flat rate, piece rate, commission or other incentive basis, the employee's wages in a pay period divided by the employee's total hours of work during that period,
• if an employee is paid a weekly wage, the weekly wage divided by the lesser of the employee's normal or average weekly hours of work,
• if an employee is paid a monthly wage, the monthly wage multiplied by 12 divided by the product of 52 times the lesser of the employee's normal or average weekly hours of work, and
• if the employee is paid a yearly wage, the yearly wage divided by the product of 52 times the lesser of the employee's normal or average weekly hours of work.

Time bank means a time bank established at the request of an employee to allow overtime and statutory holiday pay to be banked and taken as time off work with pay.

Wages includes:

• salaries, commissions or money, paid or payable by an employer to an employee for work,
• money that is paid or payable by an employer as an incentive and relates to hours of work, production or efficiency,
• money, including the amount of any liability under section 63, required to be paid by an employer to an employee under this Act,
• money required to be paid in accordance with a determination or an order of the Tribunal, and
• in Parts 10 and 11, money required under a contract of employment to be paid, for an employee's benefit, to a fund, insurer or other person,

but do not include:

• gratuities
• money that is paid at the discretion of the employer and is not related to hours of work, production or efficiency
• allowances or expenses, and
• penalties.

Week means a period of 7 consecutive days beginning:

• for the purpose of calculating overtime, on Sunday, and
• for any other purpose, on any day.

Week of layoff means a week in which an employee earns less than 50 per cent of the employee's weekly wages, at the regular wage, averaged over the previous 8 weeks.

Work means the labour or services an employee performs for an employer whether in the employee's residence or elsewhere.

Employment Standards Frequently Asked Questions

Employment Standards Branch Offices

For more information contact toll free 1-800-663-3316 or 660-4000 in the Lower Mainland.

Abbotsford - 306-32555 Simon Avenue V2T 4Y2 Phone 852-5378
Burnaby - Deer Lake Centre, 210-4946 Canada Way V5G 4J6 Phone 660-4946
Courtenay - 2500 Cliffe Avenue V9N 5M6 Phone 334-1225
Cranbrook - 100 Cranbrook Street North V1C 3P9 Phone 426-1291
Dawson Creek - 1201-103rd Avenue V1G 4J2 Phone 784-2390
Kamloops - 220-546 St. Paul Street V2C 5T1 Phone 828-4516
Kelowna - 107-1664 Richter Street V1Y 8N3 Phone 861-7404
Nanaimo - 302-155 Skinner Street V9R 5E8 Phone741-5833
Nelson - 310 Ward Street V1L 5S4 Phone 354-6550
Penticton - 103-3547 Skaha Lake Road V2A 7K2 Phone 492-1333
Port Coquitlam - 510-2755 Lougheed Highway V3B 5Y9 Phone 660-9920
Prince George - 1044-5th Avenue V2L 5G4 Phone 565-6120
Surrey - 210-5569 176th Street V3S 4C2 Phone 576-4700
Terrace - 108-3220 Eby Street V8G 5K8 Phone 638-6525
Vancouver - 201-865 Hornby Street V6Z 2G3 Phone 775-1974
Vernon - 3201-30th St. VIT 9G3 Phone 549-5664
Victoria - 400-3960 Quadra Street V8V 1X4 Phone 387-1200
Williams Lake - 112E 2nd Avenue V2G 1R9 Phone 398-4478

Administration Office
2nd Floor, 825 Fort St.
Victoria, BC V8W 1H6
Phone 387-3310