11 About the Employment Standards Act

The Employment Standards Act sets the minimum standards for wages and conditions of employment that apply in most workplaces in British Columbia. For those employees who are covered by a union collective agreement, the agreement supersedes the Act. However, most employees in the restaurant and food service industry are not unionized, and therefore you must know about these minimum standards whether you are working in the industry as an employee or an employer.

Human rights legislation such as the Canadian Human Rights Act and the B.C. Human Rights Code protect citizens of Canada from discrimination in their everyday lives and in employment. This legislation has an impact on the way food service employers recruit new employees and manage the workplace. Public services and facilities such as restaurants must also ensure that they do not discriminate through their practices or policies against their guests and customers.

The Employment Standards Act and its Regulations set the minimum standards for wages and conditions of employment in British Columbia. Employers are required to familiarize employees with their employment rights under the Act.

The Employment Standards Branch provides information to employers and employees about their responsibilities and rights under the Act through guides and brochures. It also handles inquiries by telephone, email, and through the Internet.

In larger organizations, the human resources department or payroll department may handle many of the issues related to employment standards. In smaller organizations, you may be responsible for some or all aspects of supervising and paying employees.

All supervisors, whether they work in large organizations or in small restaurants, need to know the implications of collective agreements and/or the Employment Standards Act for the scheduling of employees and the payment of overtime. Careful attention to these provisions can result in cost savings to the employer without jeopardizing the needs of the workplace or the rights of employees. This is a safer and more satisfactory approach than the “private deals” that are often worked out between supervisors and employees in the workplace.

Occupations Covered by the Act

The Employment Standards Act applies to most employees and employers in British Columbia. Federally legislated companies and their employees (e.g., federal government employees, employees of federal Crown corporations, banks, radio and television broadcasting companies, railways, and airlines) are covered by the federal Labour Code, which has similar provisions.

Some occupations are not covered under the Act. For example, doctors, lawyers, architects, insurance agents, chartered professional accountants, and realtors are not covered. Also excluded are babysitters working fewer than 15 hours a week, newspaper carriers attending school and working 15 hours a week or fewer, and persons receiving financial assistance from government while participating in certain government-sponsored employment programs.

Employees who belong to unions are covered by the collective agreements negotiated between their union and employer. Collective agreements must meet or exceed the minimum standards of the Act. If provisions of the collective agreement fall below those minimum standards, then the Act applies instead.

Agreements between employees and employers that do not meet the minimum standards set out in the Employment Standards Act are not enforceable. For example, a restaurateur cannot make an agreement with employees that they will not be paid overtime even when they work more than 40 hours per week. If the employee complained to the Employment Standards Branch, the employer could be forced to pay the wages owing. However, under certain conditions, the Employment Standards Branch may grant approval for variances to a given standard.

Other laws such as the B.C. Human Rights Code, the Labour Relations Code, and the Workers Compensation Act affect employees’ rights and employers’ obligations regarding conditions of work.

Hiring Employees

The Employment Standards Act does not require employers to follow specific procedures when recruiting and selecting employees. However, the B.C. Human Rights Code requires employers to ensure that their procedures do not discriminate on the basis of race, colour, ancestry, place of origin, political belief, religious belief, marital status, physical or mental disability, sex, sexual orientation, age, or criminal conviction unrelated to employment.

Employers may not misrepresent that a job is available, the type of work to be performed, or the terms of employment. They may not ask for or receive payment from a person in exchange for hiring that person. They also are prohibited from receiving payment from a third party to hire a person.

Employment Agencies

Employment agencies must be licensed under the Employment Standards Act. They may not charge a person for obtaining work for him or her or for providing information about employers seeking employees. Employment agencies are paid by the employer for their services.

Child Employment

An employer wishing to hire a child under the age of 15 must have prior approval from the Employment Standards Branch and must obtain the written permission from the child’s parent or guardian. If the child is a student, the permission of the school he or she attends must generally also be obtained. On approval, the Branch will issue a permit which identifies the condition of the child’s employment.

Variances

Employers and their employees may apply jointly to the Employment Standards Branch for a variance that changes or varies the application of the following provisions of the Act:

• The time period for a temporary layoff
• Paydays
• Special clothing
• Notice of a change of shift
• Minimum daily hours
• Maximum hours of work
• Hours free from work
• Overtime wages for employees not on a flexible work schedule
• Notice and termination pay requirements for group terminations

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

Complaints and enforcement measures

If you feel that your employer has contravened the Act, you may file a complaint. The complaint must be in writing and must be submitted within six months of the alleged contravention. If you were terminated, you must deliver your complaint within six months of the last day you were employed. (Alleged contravention is a legal term for a violation of a law that has not been proved. All complaints are considered alleged until they have been investigated and proved.) Complaint forms are available from the Employment Standards Branch.

When you file a complaint, you can request that your identity be kept confidential. Your identity can be revealed only if it is necessary for a proceeding under the Act or if the Branch considers disclosure of your identity is in the public interest. An employer cannot fire or threaten to fire you for making a complaint. The employer cannot coerce, intimidate, or penalize you for an actual or potential complaint, investigation, or appeal under the Act.

Every complaint received by the Branch must be investigated unless the Act does not apply to the complaint, the complaint is trivial or frivolous, or there is not enough evidence to prove the complaint. The Branch is not required to investigate if a court, tribunal, or arbitrator is already hearing a complaint or has made a decision about the complaint. If the dispute that caused the complaint has been resolved, action is not required. Branch staff may conduct investigations without receiving a complaint and may assist parties in resolving a complaint. They may inspect company records and interview employers and employees in order to investigate a complaint.

Decisions of the Branch are called determinations. The determination must include the reasons for the decision, details of any amounts payable, and penalties imposed. Copies of the determination must be given to all parties named in it. The Branch can require:

• An employer to hire or reinstate a person or pay compensation in place of reinstatement
• The payment of wages lost by the contravention
• Payment of the person’s expenses incurred as a result of contravention
• Employers to reduce hours considered to be excessive

Employers may be liable for any unpaid wages in the 24 months before the complaint was filed or employment was terminated, whichever came first. They may also be required to pay interest on any unpaid wages.

Orders of the Branch may be enforced through monetary penalties, liens (legal claims) for unpaid wages, demands to third parties owing money to someone who owes money to the Branch, and court orders. The Branch may also seize personal and business assets of a person required to pay under a determination order.

Officers or directors of a corporation can be held personally liable for up to two months’ unpaid wages per employee if that person held office during the time the wages were earned. The Employment Standards Branch may compile and publish information about contraventions of the Act and Regulations that identifies the persons responsible.

The Branch may dismiss a complaint if it determines that the Act and Regulations have not been violated. It may also vary or cancel a determination that it has previously made.

A person served with a determination has the right to appeal the decision of the Branch to the Employment Standards Tribunal. Appeals must be filed in writing within eight days if the determination was personally served, and 23 days if it was served by registered mail. The appeal can request that the tribunal suspend a determination during the appeal period. The Tribunal may cancel, confirm, or vary a determination with or without a hearing.