April 30, 2019
Bill 8 – The Employment Standards Amendment Act, 2019 was introduced to the legislative assembly yesterday afternoon, April 29, 2019. The Bill contains extensive amendments to the Employment Standards Act (the “ESA”), the core piece of legislation governing British Columbia’s non-unionized workplaces.
The Bill, which is not yet law, is expected to pass in the near future.
This is a significant development with far reaching cost and operational implications for employers. The more notable changes include:
Application of the ESA to Unionized Workplaces: Currently, unionized workplaces are largely exempt from the application of the ESA. This will no longer be the case. Going forward, any collective agreement provision dealing with issues like overtime, hours of work, statutory holidays, the treatment of gratuities, vacation time/pay, seniority retention, entitlements upon termination of employment, and temporary/permanent layoff must meet or exceed the entitlements set out in the ESA. If they do not, or if a collective agreement is silent on these issues, the ESA entitlements will be deemed to be incorporated into the collective agreement.
This change will not apply retroactively to existing collective agreements, but will apply to any collective agreement which is entered into on or after the date the legislation comes into force.
Wage Deductions: While the ESA will continue to permit employers to deduct money from wages to pay off debts owed by an employee, going forward only certain categories of debt may be paid off in this manner. These categories are:
Tips: New requirements will be introduced governing the treatment of tips and gratuities. Employers will be prohibited from withholding, deducting from, or requiring an employee to return any gratuities which are received. There is a limited exception for “tip pools” which are permitted, but which, in most cases an employer (including any shareholder or director of an employer) will not be permitted to participate in such pools.
New Leave Periods: The Bill creates two new job protected unpaid leave periods, as follows:
Temporary Help Agencies: Temporary help agencies will be required to be licensed under the ESA. If an employer engages the services of an unlicensed agency, the employer will be deemed to be the employer of each employee whom performs work on their behalf for all purposes under the ESA.
Filing Time Limits: The Director will be entitled to extend the current 6 month time limit for filing complaints in certain prescribed circumstances.
Ability to Conduct Broad Workplace Inspections: The Director will be permitted to conduct broad investigations, even in the absence of a complaint, to ensure workplaces are compliant with the ESA.
Wage Recovery: In the case of unpaid wages, employees will be entitled to recover all wages payable for a period of 12 months (currently 6 months) preceding their cessation of employment or the date the complaint is filed, whichever is earlier. This may be extended to a period of 24 months, in certain circumstances.
Information Concerning Employee Rights: Employers will be required to provide employees, in a form approved by the Director, information about the rights of employees under the ESA.
Record Keeping: Employers will be required to retain workplace payroll records for a period of 4 years following the date on which the records are created (currently the requirement is to maintain them for a period of 2 years following the termination of employment). Employers will also be required to retain averaging agreements and written assignments of wages for a 4 year period.
Employing Youth: Subject to limited exceptions, youth under the age of 14 will be prohibited from working generally, and children under the age of 16 will be prohibited from working in “hazardous industries”, or from performing “hazardous work”, which will be further defined by regulation.
All of the proposed changes referenced above will have significant impacts on British Columbia employers should they take effect. Once implemented, these items may result in significant cost implications to employers, and increased regulatory and administrative requirements.
Employers should consider how these changes may impact their business, and begin to consider steps to reduce any negative impact of these changes on business operations.
If you have questions regarding the impact of these changes, or steps you can take to reduce their impact, please do not hesitate to contract one of the lawyers in our British Columbia office.