The Employment Standards Act and Regulation set minimum standards of wages and working conditions in most workplaces in British Columbia. There a number of provisions limit or exclude coverage for certain groups such as independent contractors, employees covered by the Federal Government’s labour standards and various other types of employees that are excluded such as lawyers and professional engineers. However, generally speaking the vast majority of working people are covered by the Act in British Columbia.
The Employment Standards Act’s minimum standards include hours of work, rates of pay including minimum wage and overtime, vacation pay, requirements of recording pay statements and various other areas such as statutory holidays. If an employer is in breach of any of the minimum standards of the Employment Standards Act, then the employee has a right to have the breach resolved and file a complaint to have the adjudicators of the Employment Standards Branch issue a decision. Keep in mind that for any breach of the Employment Standards Act, the complainant must file a complaint within 6 months of that breach or else they lose the right to file a complaint. In general, the complainant may only file a complaint related to matters that occurred 6 months prior to the date of the event that resulted in the complaint however this may be extended in the case of vacation pay.
If a complainant reaches a settlement agreement or has a Determination granted in their favour then the complainant has a variety of mechanisms available to enforce the Determination including charging it as a lien against real or personal property of the employer or any other person, removing up to 2 months of unpaid wages from the personal accounts of the employer’s corporate officers and registering it as a Supreme Court judgment. Furthermore, penalties against the employer ranging from $500 to $10,000 per contravention of the Act may be collected.
It is common that small and medium sized business are in breach of the Employment Standards Act without any intent or often without even having any knowledge of the possibly breach. For employers, given the significant consequences of a breach of the Employment Standards Act, that they seek the advice of an experienced employment lawyer to assist them in making sure that they are in compliance with the Act or to represent them in a case where they have or will likely have a complaint filed against them. For employees who are concerned about whether their employment is in breach of the Act or wish to have assistance with making a complaint.
Finally, both employers and employees should be aware that there are many rights at common law that may exist between employers and employees at common law depending on the terms of the employment contract between the parties.
If you have a matter that concerns the Employment Standards Act or employment law as a whole please contact Eric Chow.