Introduction
On May 30, 2019, Bill 8 – Employment Standards Amendment Act received royal assent. The amendments reflect a significant change to B.C.’s Employment Standards Act (the “Act”) and address several areas of employment standards. The changes in the bill focus on four important areas of reform: (1) establishing new, unpaid, job-protected leave for employees experiencing domestic violence and for employees who need to care for a critically ill child or adult family member; (2) investigations and complaints; (3) protecting child workers by having laws that comply with the international standards for child labour; and, (4) strengthening wage recovery for workers.
While not all of the changes commence immediately, many have. Summarized below are some of the noteworthy changes.
1. Protected Leave for Care and Support of Family, and Domestic and Sexual Violence
Employees are now provided job protection to care or support a family member. Section 52.11 of the Act will permit an employee to obtain leave (unpaid), to care or support an immediate family member (or a member of a prescribed class). To be eligible, the employee must provide a certificate from a medical practitioner or nurse practitioner (certificate requirements are provided in the Act) (s 52.11(4)). The leave period is up to 36 weeks to care or support for a family member under 19 years of age, and up to 16 weeks for a family member that is 19 years of age or older (s 52.11(2)(a) and (b)).
Leave for employees that experience domestic or sexual violence is available (s 52.5). The employee may seek leave for the purposes of receiving medical treatment, victim services or other social services, psychological or professional counselling services, or to temporarily or permanently relocate, or seek law enforcement assistance (s 52.5(3)). The period of leave will be up to 10 days of unpaid leave, in units of one or more days or in one continuous period, and up to 15 weeks of unpaid leave, in each calendar year (s 52.5(4)). Reasonably sufficient proof that leave is required must be provided to the employer, if requested (52.5(7)).
2. Investigations and Complaints
The Employment Standards Branch handles complaints with respect to violations of the Act and some changes to the investigation and complaint provisions in the Act have been made.
The amendments clarify the criteria used to determine whether to extend the six-month time limit for filing a complaint, including whether special circumstances exist and whether an injustice would result (s 74(5)).
With respect to the complaints, the self-help kit is no longer a required step before filing a complaint. Instead, B.C. will implement a complaints process to support fair and objective enforcement of the Act.
In keeping with goals of “fair” and “objective” enforcement of the Act, the amendments incorporate procedural safeguards into the investigation process for employers. If an investigation into a complaint is conducted, the respondent must be afforded an opportunity to respond, but an oral hearing is not required (s 77.1). After the conclusion of the investigation, a written report must be produced and served on all the parties, and the respondent must be provided an opportunity to respond (s 78.1). The written report and responses must be considered in the final determination (s 78.2).
3. Protection for Children
The Amendments include protections for children. For children under 14 years of age, the director’s permission must be obtained before the child may perform “light “work” (as prescribed by the Lieutenant Governor in Council) (s 9(2)(a)). For children 14 or 15 years of age, written consent of the child’s parent or guardian is required, or permission from the director (s 9(2)(b)).
Also included are protections for children from “hazardous work” or work in a “hazardous industry.” “Hazardous industry” and “hazardous work” includes an industry/work that the Lieutenant Governor in Council deems likely to be harmful to the health, safety or morals of a person under 16 (s 9.1(1)). Employers may not employ children under 16 in a hazardous industry or in hazardous work (s 9.1(2)). Children who are between 16 and 19, however, may be employed in hazardous industries or for hazardous work, provided they have attained the prescribed age (s 9.1(2)).
4. Protections for Gratuities
The Amendments provide protections for gratuities. Specifically, an employer may not withhold gratuities from an employee, make deduction from an employee’s gratuities, or require an employee to return or give the employee’s gratuities to the employer, unless the employer is authorized or required by B.C. law or court order (s 30.3). However, gratuities may be withheld, if the employer collects and redistributes the gratuities to some or all of the employer’s employees (except for prescribed employees or classes of employees) (s 30.4). An employer or director or shareholder of an employer may not share in redistributed gratuities, unless they perform to a substantial degree, the same work of some or all of the employees to whom the gratuities are redistributed (s 30.4(3)).
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For more information on this topic or to hear how Bill 8 mat affect your business, please contact Jordanna Cytrynbaum or Edward Hulshof.