June 27, 2018

Workplace Changes Upcoming in British Columbia: Proposed Changes to BC’s Employment Standards Legislation

On June 21, 2018, the Employment Standards Act Reform Project Committee (the “Committee”) released its recommendations for future amendments to the B.C. Employment Standards Act (the “ESA”).  While the Committee split on a number of contentious issues, it is expected that these recommendations, in some iteration, will form the basis of any upcoming changes to the ESA.
Front to back, the report exceeds 400 pages, containing 78 recommended changes to the ESA. What follows are brief highlights of those recommendations which, if passed into law, will be of great interest to employers and employees in British Columbia.

Hours of Work

Compressed Work Week and Alternate Work Patterns:  The Committee recommended that the ESA be amended to permit employers to adopt schedules of work within a 40 hour work week, which deviates from the standard 8 hours per day (such as a four day week of 10 hours per day).
The Definition of “Week”:  Currently the ESA defines a work week as the period from Sunday to Saturday.  This is unusual, compared to many other jurisdictions within Canada.  The Committee recommended this definition should be amended to capture any 7 consecutive day period, regardless of start date.
Changes to Shift Schedules:  The majority of the Committee recommended that the ESA be amended to require employers to provide 24 hours’ of notice to employees to a change of shift or work schedule (subject to limited exceptions).

Overtime

Overtime “Time Banks”:  The Committee recommended repealing the current “time bank” provisions of the ESA, which currently allow for employees to credit overtime pay to a “time bank”, to allow them the option of taking time off with pay at a later point instead of receiving overtime pay in the pay period in which it was earned.
Overtime Refusal: The Committee recommended allowing employees to refuse overtime without fear of reprisal from an employer.  The circumstances in which this would tentatively be permitted include where it conflicts with family/educational commitments or scheduling difficulties with another employer.
Minimum Daily Hours:  The Committee recommended increasing the amount employees are entitled to receive where they report to work, but are not required to actually work the hours scheduled.  The committee’s recommendation is:

• where the employee was scheduled to work more than 4 hours, they will be entitled to at least 4 hours wages if work starts, and 2 hours’ pay if not; and,
• where the employee was scheduled to work less than 4 hours, they will be entitled to 2 hours’ wages, regardless of whether they actually end up working that day.

Informal Agreements to Make Up Time Off: The Committee recommended that the ESA be amended so as to allow an employee to voluntarily work up to 3 hours of overtime during a pay period (without incurring overtime rates), to make up for time the employee wishes to take off during the pay period.  This would allow an employee to take time off without losing out on wages, by making up the time later.

Wages and Wage Payment

Tips and Gratuities:  The Committee recommended adding provisions into the ESA which would prohibit employers from withholding or deducting tips or gratuities earned by an employee.
Vacation Pay: The Committee recommended statutorily authorizing the practice of paying “vacation pay” through the continuation of an employee’s salary during the vacation period. Currently this is a technical violation of the ESA, but a common practice of many employers in the province.

Statutory Holidays and Special Leaves

Statutory Holiday Entitlement: A slight change to the eligibility criteria for statutory holiday pay, such that employees will be required to have worked or earned wages on 16 of the 60 days preceding the statutory holiday, including their last scheduled shift immediately prior to and after the holiday, in order to qualify for statutory holiday pay.
Increasing Family Responsibility Leave:  The Committee recommended that the current “Family Responsibility Leave” be supplanted to allow employees up to 7 days of unpaid leave (currently 5 days).  That leave could be taken for reasons which would include an employee’s own illness or injury.
Qualifying Period for Statutory Non-Discretionary Leaves:  The Committee recommended that three months of continuous employment be a minimum requirement in order to be eligible for any statutory leave, with the exception of jury duty, or reservist leave.  The minority of the Committee split on whether the above exceptions should be expanded to include pregnancy, parental, and compassionate care leave, with some being in favour of eliminating the qualifying period altogether.

Termination

Group Termination: The Committee recommended amending the ESA to allow employers to provide both notice and pay in lieu of notice in the event of group  terminations.

Administrative Penalties and Enforcement Process

Mandatory Use of the Self-Help Kit: The Committee recommended abolishment of the mandatory use of the ESA self-help kit prior to an employee gaining access to the ESA complaints process.
Limitation Period for Complaints: The Committee recommended that the limitation period for an employee bringing an ESA complaint should be increased to the shorter of either six months from the last day of employment or two years from the date of the alleged contravention (subject to some exceptions).
Administrative Penalties: A majority of the Committee recommended that the quantum of administrative penalties should allow some element of discretion based on the severity of the offense, subject to a maximum cap.
Role of the Director in Appeals to the Tribunal: The Committee recommended taking a similar approach to handling unrepresented parties in Employment Standards Tribunal appeals as is currently available under British Columbia’s workers’ compensation scheme, namely, designating Ministry of Labour personnel or independent, part-time “respondent’s advocates” to represent them.
Depending how they are ultimately implemented, these recommendations may result in significant implications to employers and require substantial changes to existing employment and payroll policies.  We will keep you updated as these changes develop.
The consultation paper released by the Committee can be found here.
If you have questions regarding the impact of these potential changes, please do not hesitate to contact one of the lawyers in our British Columbia office.