New ESA Legislation Now in Force
BC’s Employment Standards Amendment Act is now in force. What does that mean for your organization?
On May 30th, 2019, Bill 8 – BC’s Employment Standards Amendment Act – was passed. The Bill introduced several revisions and new provisions that mark the first significant amendment in approximately 15 years. While further significant revisions may be just around the corner, provincially regulated employers in BC should be aware that the following are now in force.
New Job Protected Leaves
Employees are now entitled to take 10 days of unpaid leave if they or a dependent experience domestic or sexual violence. Victims of domestic violence will be entitled to take an additional 15 weeks of unpaid leave. Employees may also take up to 16 weeks critical illness or injury leave to care for a critically ill dependent adult, and up to 36 weeks to care for a critically ill child. Note that this leave is distinct from the previously existing Compassionate Care leave, which allows for up to 27 weeks to care for a terminally ill immediate family member.
Employee Rights Under the ESA
Employers must now ensure all employees are informed about their rights under the ESA.
Employing Youth, and Hazardous Industries
The minimum age youth may work has been raised from 12 to 16 years generally; an exception is light work (such as stocking shelves), which youth aged 14 to 15 may perform. Youth under the age of 16 are prohibited from working within hazardous industries in any capacity, and restrictions will be placed on the type of hazardous work youth aged 16 to 18 may perform.
Keeping Payroll Records
Employers must now keep payroll records (including averaging agreements and wage assignments) for 4 years after the date the payroll record was created. Formerly, the requirement was to keep records for 2 years after employment terminates.
The wage recovery period (the time frame when employees may recover wages following a complaint) has been extended from 6 to 12 months. In some cases, this may be extended to 24 months.
Gratuities & Tips
Employers must not withhold tips/gratuities, deduct tip amount from pay, or require they be turned over, unless it will become part of an eligible pool amongst employees.
Complaints & Investigations
Under certain circumstances, the time limit for filing complaints may be extended beyond the current 6 months, and the ESA Director will have authority to conduct investigations to ensure workplaces are compliant – both as a result of a complaint and in the absence of one.
As is the case currently, employers may deduct money from wages paid if the employee owes money to the employer; however, under the new Bill, this may only be done to collect on wage advances and money owed related to purchase of goods or services from the employer.
In the case of unionized operations, collective agreements will now need to meet or exceed the entitlements set out in the ESA.
While all of the above are necessary to comply with, not all will be immediately relevant to every organization. These include, for example: those that don’t typically hire youth; non safety-sensitive workplaces; and non-service employers where tips/gratuities aren’t part of an employee’s compensation.
New legislation that all employers need to be immediately aware of and will, in some cases, need to take action on, include:
- Ensuring compliance – While compliance with ESA has always been an expectation (and we hope you’ve been following it, at minimum), in much the same way as WorkSafe BC can do, Employment Standards can now investigate your organization even without a prior complaint.
- Communicate employee rights – While we’re not fans of telling employees that they’re entitled to take a leave or can take a lunch break (for example) solely because it’s required by law, all employees should know that they do have rights under the ESA. Your employee handbook is the best place to do so, but in the absence of one, another written means, depending on your organization, will be necessary.
- Update employee handbooks and leave policies to reflect additional job-protected leaves.
- Update retention practices.
As noted above, there may be further changes in store for employers in BC. Watch this space for details as new provisions and/or revisions are introduced.