Employment Law

BC's Employment Standards Act (ESA) is the law that provides minimum standards that employers in BC must follow. For example, there are rules about:

• hours of work
• minimum wage
• vacation pay, holiday pay, and time off from work

It is important to understand that not all jobs are covered by the Act and for some jobs, only parts of the ESA apply. A Guide to the Employment Standards Act is available online.

You don't need to be a Canadian citizen or permanent resident, or have a work permit, to be covered by the ESA.

The ESA provides minimum workplace standards for most employees in British Columbia. Some professionals are exempt from all or part of the Act. Some sectors and industries are subject to specific employment standards provisions which only apply to them.

Information about employment standards, including a guide to the Act and factsheets on various subjects, is available from any Employment Standards Branch office or on the Branch website.

Complaint Process

The Employment Standards Branch (ESB) encourages employees and employers to solve problems on their own, without government involvement. The AdminLawBC.ca website provides information and tips on Early Resolution.

If the parties cannot resolve their problem themselves, the Branch may facilitate a resolution or, if necessary, make a decision regarding a specific complaint.

The Act provides for a six-month time limit for filing complaints. It also sets a six-month limit on the time period the Branch can go back to see whether an employer owes money to an employee.

Self-Help Kit

The first step an employee takes to resolve a dispute over the payment of wages or other issues is to contact the employer directly by using the Self-Help Kit provided by ESB. The Kit helps employees define the problem and identify a desired solution. It will help you…

• Decide whether the Employment Standards Act applies to his or her situation;
• Assess whether the employer is in conflict with the Act;
• Calculate how much money is owed; and
• Make a written request to the employer to pay money owing or make changes required under the Act.

ESB publishes a Self-Help Kit Factsheet that provides more detailed information. If the employer agrees with the employee's request, money can be paid directly to the employee. At this point the matter is resolved.

In certain circumstances, an employee will not be required to use the Kit. Examples are:

• The employer's business is closed;
• The matter involves a person under the age of 19;
• The complaint is related to a leave provision of the Act (pregnancy leave, parental leave, bereavement leave, compassionate care leave, family responsibility leave or jury duty);
• The employee is a farm worker, garment or textile worker, or domestic;
• The employee has significant language or comprehension difficulties; or
• The employee has already sent a letter to the employer attempting to resolve the issue.

Filing a Complaint

If an employee is unable to resolve a dispute by using the Kit, if an employer does not respond, or if an employee is not required to use the Kit, an employee may make a complaint to the Employment Standards Branch.

Employment standards complaints must be in writing and can be faxed, mailed, dropped off in person or submitted online. The employee that files the complaint should provide evidence that relates to the complaint.

Dispute resolution

Although some matters are resolved through investigation, most are resolved through a process of education, mediation and/or adjudication.

Investigation

If a matter is referred to investigation, the investigating officer will gather information and evidence from both parties. The officer will put each party’s position and evidence to the other party for a response. The officer will try to resolve the complaint informally, but if that is not possible, the officer will make a decision and issue a Determination – a decision.

Education

ESB staff will review the complaint and the evidence that has been provided. The Branch will contact the employer and employee to gather more information and to explain the provisions of the Act. If the employer resolves the complaint at this point and pays any money owing, no further action will be taken and the file will be closed.

If the complaint is not resolved, it will be referred to mediation. Both parties will be asked to provide anything they think will be helpful to resolve the dispute, such as payroll information, records of hours worked and wages paid, and documentation of disciplinary actions.

Mediation

An officer of the Branch will conduct a mediation, which is an informal meeting between the employer and the employee. It will be held in person or by teleconference.

If the parties resolve their dispute, the officer conducting the mediation will help them draft a "Settlement Agreement" that both the complainant and the employer will sign. Once signed, the agreement is binding on the parties. If it is not honoured, it can be filed in Supreme Court and enforced as a judgment of the Court.

Even if mediation does not resolve the dispute, it may still help the parties clarify the issues, understand each other’s point of view, and identify what facts are agreed upon and what issues remain in dispute.

Hearings

If the complaint is not resolved through mediation, the Branch will schedule an adjudication hearing to be conducted by an officer. This is a formal hearing. To adjudicate means to judge.  If a hearing is scheduled, both parties must attend. Both parties are expected to bring relevant evidence and any necessary witnesses. The hearing may be held in person or by teleconference. The AdminLawBC.ca website provides information about Preparing for a Hearing.

Determinations

If a matter is not resolved informally during an investigation, or at any time during the mediation/ adjudication process up to the end of the adjudication hearing, the officer conducting the adjudication will issue a written decision called a Determination. If the Determination finds that money is owing to the complainant or that the employer has otherwise contravened the Act, it will order the employer to pay the amount owing, cease contravening the Act and pay one or more mandatory penalties.

If an employer does not pay the amount ordered, the Determination can be filed in Supreme Court and enforced as a judgment of the court. This may include turning the matter over to a Court Bailiff for collection.

Appeals

A Determination can be appealed to the Employment Standards Tribunal. More information on appeals is available on the Tribunal website at www.bcest.bc.ca.

Unionized Workers

A union is a group of employees who join together to promote and protect the rights of workers. There are rules that say what unions can and can’t do. In BC, this law is called the Labour Relations Code.

If you are part of an employment union, your collective agreement sets out your conditions of employment, like wages, hours of work, and overtime pay. The collective agreement is decided through collective bargaining. You pay union dues, which your employer takes from your pay and transfers to the union.

If you have a complaint against your employer, you have to follow the process in the collective agreement. The collective agreement includes the process that workers need to use if the employer does not follow the agreement. It's up to the union to protect workers' rights if this happens.

The only exception to this is if you have a complaint about something that goes against your human rights. In that case, you might need to make a human rights claim as well as use the complaint process in your collective agreement.

Minimum standards

The conditions in the collective agreement must meet minimum standards. For most workers in BC, these standards are in BC's Employment Standards Act (ESA). Collective agreements set conditions of employment that are better for workers than the minimum standards in the law.

Some industries are covered by federal laws. These are laws made by the Government of Canada and they apply throughout the country. These industries include banks, airlines, some trucking businesses, and broadcasting. Workers in these industries are covered by the Canada Labour Code. Like the ESA, the Canada Labour Code sets out minimum standards employers must follow.