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Labor Law > Chapter 6 > Flashcards

Chapter 6 Flashcards

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1
Q

ESA: are there some exclusions?

A

Yes. legislation covers most EE but there are exemptions regarding some provisions

  1. EE cannot waive minimum entitlements in contracts/agreements
  2. ER may offer better benefits
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2
Q

How can you enforce ESA?

A

File complaint at BC Employment Standards Branch

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3
Q

What provisions apply to federal workers’ minimum conditions?

A

Canada’s Labour code

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4
Q

Who are excluded from BC ESA?

A

statutory employees:

  1. members of professional associations (Dr., solicitors, engineers, accountants)
  2. workers in job-creation & work-experience programs
  3. EE in federally-regulated industries (Canada Labour code)
  4. Managers (SOME sections are n/a)
  5. independent contractors & self employed individuals
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5
Q

Are unionized EEs exempt from ESA?

A

collective agreement governs certain areas, otherwise by ESA

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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

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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
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8
Q

Employers’ general responsibilities (3)

A
  1. record keeping 2 years after termination
  2. payment of wages (semi-monthly, no longer than 1 month, partial payment prohibited)
  3. termination of employment (fired by ER: 48 hours, quit: 6 days)
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9
Q

When are deductions from paycheck allowed? (4)
&
When not allowed? (1)

A
  1. per statute (EI, CPP)
  2. Court order (garnishment order / child support - no more than 30%)
  3. collective agreement (union dues)
  4. authorized by employee (assignment/contribution re benefits)
  5. not allowed: business costs/damage to equipment under control of EE
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10
Q

wage statement (2)

A
  1. provide written / email statement on or before payday

2. info provided including: hours worked, wage rate, gross and net wage, amount, deductions & purpose

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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%
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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
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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
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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”
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15
Q

What do the work hours provisions cover? (4)

A
  1. excessive hours
  2. hours free from work
  3. eating periods
  4. breaks
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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
Q

What is the statutory holidays pay rule?

A
  • 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
Q

What is the maternity leave rule?

A
  • 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
Q

What is the parental leave rule?

A
  • 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
Q

What is the family responsibility & death leave rule?

A

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
Q

What is the child disappearance leave rule?

A
  • 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
Q

What is the compassionate care leave rule?

A
  • 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
Q

What is the Jury Duty rule?

A
  • 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
Q

What is the Reservists’ leave rule?

A
  • 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
Q

What rights are you entitled to during statutory leaves?

A
  • 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
Q

What is the administration & enforcement of rights to leave process?

A
  • 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
Q

What is the role of the employment standards branch (ESB)?

A
  • 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
Q

Employment Standards Branch (ESB) issues determination so ER must:

A
  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 (9 decks)

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