Chapter 6 Flashcards
ESA: are there some exclusions?
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
How can you enforce ESA?
File complaint at BC Employment Standards Branch
What provisions apply to federal workers’ minimum conditions?
Canada’s Labour code
Who are excluded from BC ESA?
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
Are unionized EEs exempt from ESA?
collective agreement governs certain areas, otherwise by ESA
How does ESA apply to managers/supervisors?
not covered by overtime & hours
title is insufficient to qualify as MGT
must have hiring and firing authority
What is N/A to professional employees (teachers/instructors), firefighters / police officers? (5)
- minimum wage
- hours of work
- overtime pay
- paid statutory holidays
- vacation pay
Employers’ general responsibilities (3)
- 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)
When are deductions from paycheck allowed? (4)
&
When not allowed? (1)
- 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
wage statement (2)
- provide written / email statement on or before payday
2. info provided including: hours worked, wage rate, gross and net wage, amount, deductions & purpose
Variance of employment standard process,
- topics to apply
- What % workers affected requires EEs’ consent & understanding?
- employer applies to director of employment standards
- work hours
- overtime wages
- free hours
- split shift
- special clothing
- 51%
Who does the minimum wage in BC not apply to?
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
what is the 2 hour rule?
what happens if shift is cancelled?
What is the exemption to this rule?
KNOW THIS SHIT
- 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
What is the excessive hours rule?
- ER may not require employee to work “excessive hours” or “hours detrimental to health or safety”
What do the work hours provisions cover? (4)
- excessive hours
- hours free from work
- eating periods
- breaks
What is the hours free from work rule?
&
If not, what does EE get?
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
What is the meal break/eating periods rule?
Conditions of unpaid / paid
1/2 hour every 5 hours or without pay
if unpaid:
- cannot require EE stays on premises
if paid:
- required to stay on premises
What is the coffee break rule?
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
What is the overtime pay rule?
- 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)
What is the Managerial exemption rule?
managers (hire & fire authority) are exempt
- Cab drivers/Teachers/Instructors/ Wilderness Guides etc.
- Salaried employees who are not exempted, are eligible for overtime pay
What is the Averaging agreements rule?
- 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
What is the banking of overtime rule?
- 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)
What is the Annual vacation rule?
- 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
What is the vacation pay rule?
- 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
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
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
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
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
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
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’
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
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
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
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
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.
Employment Standards Branch (ESB) issues determination so ER must:
- comply with ESA requirement/reinstate EE
- cease wrongful act/pay wages
- post notice of contravention in workplace
- 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
