New amendments to the B.C. Employment Standards Act (“ESA”) came into effect on August 15, 2021 and further amendments will come into effect on October 15, 2021. In this article, we provide an overview of these developments.
Complaint and Investigation Process – August 2021 Amendments
On August 15, 2021, previously announced amendments to the ESA came into effect. These amendments relate to the complaint, investigation and determination process for alleged ESA violations. These are the second round of amendments to the ESA introduced by Bill 8 in 2019. See our discussion on the first wave of amendments here.
The August amendments affirm the wide latitude granted to the Director of Employment Standards (the “Director”) to conduct, stop or postpone an investigation into a potential violation of the ESA or its regulations “at any time and for any reason”. While this is similar to the Director’s previous authority, the power to do so was never as explicit as it now reads.
The Director’s expansive power now also permits the Director to extend the deadline to file a complaint in certain circumstances. Prior to the amendments, the ESA imposed a six month deadline to file a complaint relating to a termination or the alleged contravention of certain ESA provisions. The Director may now extend this deadline if there are special circumstances or an injustice would result.
These amendments also address procedural aspects of the investigation process, including that the Director:
- is not required to give an oral hearing to any person being investigated or against whom a determination is made, although reasonable efforts must still be made to afford those persons an opportunity to respond;
- may introduce an alternative dispute resolution process (“ADR”) during the investigation;
- can conduct a broader investigation if the complaint relates to employees other than the employee who made the complaint; and
- must serve a written report (following the investigation, but prior to making a determination) summarizing the findings of the investigation on the complainant, the person against whom the complaint was made and anyone else the Director believes should have the opportunity to respond. Any of these individuals may provide a written response to the report, which the Director must consider in making a determination.
Overall, the amendments affirm the Director’s extensive authority while ensuring individuals involved in the complaint process are afforded a reasonable opportunity to respond.
Youth Employment – October 2021 Upcoming Amendments
On October 15, 2021, additional amendments designed to protect youth workers will take effect. These amendments raise the general working age from 12 to 16 and impose restrictions regarding work that may be performed by employees under age 16.
To employ a worker under age 14, employers will need written consent from the Director. Prior to the amendments, the Director’s permission was only required when hiring children under age 12.
To hire a worker age 14 or 15, employers will need written consent from the worker’s parent/guardian where the youth will perform “light work”. Permission from the Director of Employment Standards will be required to hire an employee age 14 or 15 if the work falls outside the definition of “light work”. “Light work” is defined as work that is unlikely to be harmful to the youth’s health or development. Examples of “light work” include administrative, food service, retail, recreational, performing arts, and sports club work. The Backgrounder to the amendments identifies the occupations that fall inside and outside this definition here.
Employers may allow youths age 14 or 15 to perform services falling outside the definition of “light work” if the work is performed on a family farm, in a family business, or in a sports or recreational activity for children under 16 years of age.
The government announced it will be introducing further regulatory changes later this year to define “hazardous work” for workers age 16 to 18. We will provide updates once those changes are announced.
Finally, amendments to the Employment Standards Regulation effective October 15, 2021 will also narrow the prior exclusion for home-care workers and babysitters. Babysitters and home-care workers will only be exempt from the ESA if they work an average of less than 15 hours per week in any four-week period. Otherwise, the ESA will apply.
If you have any questions regarding these ESA amendments, please do not hesitate to contact your Harris lawyer.
