– Authored by Brent Mullin
On June 1, 2019, amendments to British Columbia’s Employment Standards Act came into effect. These amendments not only expand certain employee rights and employer obligations under the Act, but also change the complaint and investigation process by which those rights and obligations are enforced.
THE COMPLAINT AND INVESTIGATION PROCESS
The recent amendments bring about a change in approach to the enforcement and protection of employee rights under the Employment Standards Act. The most significant change is the removal of the employee self-help kit requirement.
The employee self-help kit was introduced in the early 2000s. It required that the employee generate and pursue their complaint through a self-help kit before the Employment Standards Branch would take action on it. The self-help kit process also required that the employee try to reach a settlement with their employer (or former employer).
While encouraging discussion and settlement is laudable, the self-help kit was much criticized and ultimately proved difficult for many employees to undertake. The difficulties for individual employees included language barriers in completing the self-help kit forms, lack of knowledge or familiarity with the law, discomfort with the legal system, and reluctance to engage in an adversarial context against an employer or former employer. Critics said imposing the self-help requirement on individual employees was unrealistic, intimidating, and led to fewer complaints being filed and pursued, with the result that the rights and protections in the Employment Standards Act were eroded and structurally inaccessible for many.
Responding to these concerns, the amendments to the Employment Standards Act remove the self-help kit requirement. Instead, employees simply file their complaint with the Employment Standards Branch and a mandatory investigation of the complaint will be undertaken by the Branch. In practice the complaint will be investigated by an Industrial Relations Officer (IRO), who is an employee of the Employment Standards Branch with expertise in matters under the Act, including investigating, mediating, and adjudicating workplace complaints.
As well, one of the more notable changes to the Act is the discretion given to the Director of the Employment Standards Branch to expand the scope of an investigation so that what starts as an individual complaint could potentially lead to a broader investigation of the workplace as a whole.
These amendments establish a more proactive role for the Employment Standards Branch in monitoring, investigating and enforcing employee rights under the Act. They are a sea change from the former self-help kit approach.
For its part, the Ministry of Labour has promised greater resources to support this more hands-on approach by the Employment Standards Branch, including the hiring of additional Industrial Relations Officers.
Given in particular the Director’s power to expand the scope of a complaint, it would be prudent for employers to ensure their practices and policies are compliant with the Act and are being properly administered in the workplace. In addition, complaints under the Act should be diligently responded to by the employer throughout the IRO investigation in order to help prevent it from resulting in an expanded investigation. Our lawyers are experienced in these matters and would be happy to assist you in reviewing your policies or handling any complaints that may arise under the Act.
As with any change to employee rights and employee-employer relations in British Columbia, this new approach in the Act may ultimately attract some controversy and even criticism. That was the case when a similar system was in place in the 1990s (prior to the self-help kits), which drew criticism from employers that IROs exercised their powers at times in an unwarranted, heavy-handed manner. This criticism may have been a factor leading to the introduction of the self-help kit approach. As is often the case though, we will likely have to wait and see how things develop this time around.
EXPANDED EMPLOYEE RIGHTS AND EMPLOYER OBLIGATIONS
Employee rights and employer obligations under the Employment Standards Act have been expanded by specific legislative amendments in three general categories:
1. increases to individual entitlements – these include:
• an extension to the period of time an employee has to claim to recover wages owing to them from 6 to 12 months (with the future possibility of extending that to 24 months in “wilful or severe” cases);
• new statutory unpaid leaves to care for critically ill family members and to deal with domestic or sexual violence;
• new provisions regulating tips and tip pooling, prohibiting employers from withholding or deducting from tips or gratuities or requiring them to be turned over to the employer;
• child employment restrictions for 12 to 16 year-olds, with some special provisions for “light work” for 14 and 15 year-olds, and restrictions regarding hazardous work for 16 to 18 year-olds;
2. specific obligations on employers – which include (along with the individual entitlements just noted):
• for a unionized employer – to ensure that the provisions in a collective agreement reached or renewed after May 30, 2019 “meet or exceed” the requirements in the Employment Standards Act regarding such matters as hours of work and overtime, annual vacation and vacation pay, and termination and layoff;
• an increase from 2 years to 4 years as the period required to retain payroll records; and
3. increased powers of the Director of the Employment Standards Branch – which include:
• the obligation to investigate all complaints and to broaden an individual complaint to include other employees in the workplace;
• to waive or increase penalties;
• to require an employer to provide to its employees information about the employee rights in the Employment Standards Act in a form approved or provided by the Director.
These and the other amendments to the Employment Standards Act are very specific in nature. More particular information on them is available online here.
The above amendments are the second of three anticipated sets of amendments to the Employment Standards Act. The first was passed in 2018 with the extension of certain leaves and the establishment of graduated increases to the minimum wage (with a final increase to $15.20 on June 1, 2021). The second set of amendments is what we have described above. The third set of amendments is expected to address such matters as overtime, the work week, and shift scheduling provisions. No announcement has been made as to when the final set of amendments to the Act can be expected.
We will be monitoring these amendments to the Employment Standards Act and will keep you updated on developments in this area. In the meantime, we would be happy to assist you with any concerns you may have arising from these amendments or any other matter in your workplace.