The British Columbia government recently tabled Bill 8, Employment Standards Amendment Act, 2019. This Bill, which has not yet become law, contains significant updates to the Employment Standards Act (British Columbia) (ESA). It is the first of what is anticipated to be two stages of amendments.
This Bill contains too many changes to summarize here. Readers should review the Bill itself or consult legal counsel.
Highlights include: (1) extending the period over which employees can recover wages payable; (2) additional unpaid leaves; and (3) raising the general age at which a child may work from age 12 to age 16; and (4) requiring collective agreements to “meet or exceed” the minimum requirements of the ESA.
The changes extend the period for which employees may recover wages payable, from six to 12 months. It is possible to extend this to 24 months in some circumstances. The government has indicated that this may apply in cases involving willful or severe contraventions of the ESA. It is important to note, however, that the recovery period is not the same as the deadline within which a complaint must be filed. Section 74 of the ESA still requires the complaint to be filed within six months of dismissal, or if certain transgressions are involved, then within six months of the transgression.
Additional job protected unpaid leaves are also being introduced. This includes a leave for critical illness and injury which allows employees a designated amount of time off to provide care or support to a family member if a medical or nurse practitioner issues a certificate confirming certain specified matters. The amount of time off permitted is intended to align with federal employment insurance benefits.
A leave for domestic violence is also included. An employee seeking this leave may need to provide the employer with reasonably sufficient proof that the employee is entitled to this leave. The Bill contains details about how these leaves may be taken.
The changes also clarify an employer’s liability if an employer’s operations are suspended or discontinued when an employee’s job protected leave ends.
The minimum working age will become age 16. An exception will permit children aged 14 and 15 to perform “light work” that is safe for their health and development, with written consent of the parent or guardian. Further restrictions apply to hazardous industries and hazardous work with respect to children under age 19.
The changes that apply to collective agreements are a significant change for unionized employers. Collective agreements will need to be scrutinized to ensure that the key provisions of the next agreement “meet or exceed” the corresponding Parts of the ESA. Unionized employers should carefully review these provisions.
This Bill also seeks to protect workers’ rights with respect to tips and gratuities. Subject to several exceptions, the Bill prohibits employers from withholding tips or other gratuities from employees, deducting from them, or requiring them to be turned over to the employer.
Additional changes require employers to keep certain records for four rather than two years. Other changes apply to assignments of wages.
Employers will be required to make available to each employee information about employees’ rights under the ESA. This must be in a form provided or approved by the Director of Employment Standards.
The amendments eliminate the self-help kit that complainants were previously expected to use before filing a complaint.
Additional changes provide for increased enforcement. The 2019 budget included an increase of $14 million for enforcement efforts. The Labour Minister has announced plans to hire approximately 40 new enforcement officers this year.
The Bill also contemplates that farm labour contractors and operators of temporary help agencies become licensed.
Employers should review and adjust certain practices and policies, including policies on job protected leaves and student employment. Temporary help agencies and farm labour contractors should prepare to become licensed.
Bill 8 is anticipated to be the first of two stages of amendments. The next stage may address overtime and related provisions, among others. It is uncertain when the second stage of amendments will be introduced. It is possible that Bill 8 may be revised before being passed into law.
This is a modified version of an article that appeared in the Kelowna Daily Courier on May 10, 2019, the Kelowna Capital News and other online publications on May 11, 2019 and May 12, 2019. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. If you would like to reach us, we may be reached at 250-764-7710 or firstname.lastname@example.org.