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British Columbia Employer Advisor Keeping Employers Posted on Developments in Labour and Employment Law

Category Archives: Wage and Hours

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B.C. announces a 50 cent increase to the minimum wage effective September 15, 2017

Posted in Employer Obligations, Employment Standards, Wage and Hours

Earlier this month, we posted a list of minimum wage increases across Canada and noted Premier Christy Clark’s May 2016 announcement that the provincial government was committed to raising the minimum wage for employees in British Columbia to $11.25 per hour effective September 15, 2017 (click here).  In line with this commitment, B.C.’s Jobs, Tourism and Skills Training Ministry issued a news release yesterday announcing that, effective September 15, 2017, the minimum wage will rise by 50 cents to $11.35 an hour and the minimum wage for liquor servers will increase to $10.10 an hour. Read the full news … Continue Reading

Minimum Wage Increases in 2017

Posted in Employment Standards, Wage and Hours

Minimum wage increase are on the horizon for employees across Canada.

  • Alberta: On October 1, 2016, the general minimum wage increased to $12.20 per hour, liquor servers were included in the general minimum wage category, and salespeople received a wage increase to $486/week. Effective October 1, 2017, the general minimum wage will increase to $13.60 per hour, and the rate for salespeople will increase to $542/week.
  • New Brunswick: Effective April 1, 2017, the minimum wage will increase from $10.65 to $11.00 per hour.
  • Quebec: Effective May 1, 2017, the general minimum wage will increase from $10.75 to
Continue Reading

“Virtual Slave” Awarded $50,000 for Injury to Dignity

Posted in Discrimination, Family Status, Human Rights, Immigration, Wage and Hours

Human Rights Tribunal found nanny was sexually assaulted, isolated and underfed by employer

Where an employer fails to meet its human rights obligations, the damages awards for the “injury to dignity” component of damages are becoming increasingly significant. The recent decision of the British Columbia Human Rights Tribunal in PN. v. FR and another (No. 2), is an example of the scale of penalty an employer can face where the breach of human rights obligations is at the extreme end of the scale.

The complainant, a domestic worker from the Philippines, was placed with the respondents as a housekeeper … Continue Reading

Time Off to Vote in Municipal Elections?

Posted in Employee Obligations, Employment Standards, Labour Relations, Wage and Hours

Are employers obligated to give employees time off to vote in the general local elections this Saturday, November 15?

The short answer is no. Unlike in provincial and federal elections, there is no statutory obligation under the Local Government Act on employers to provide employees with time off from work to vote in local government or municipal elections. The polls for these elections are open from 8am-8pm, and employees may vote in advance polls or even by mail ballot if they have conflicting commitments on the general voting day.

Although there is no legal obligation to provide time off, we … Continue Reading

Teachers’ Strike: What does it mean for your workplace?

Posted in Accommodation, Discrimination, Employment Standards, Family Status, Human Rights, Labour Relations, Unions, Wage and Hours

While talks continue, there is no immediate end in sight for the ongoing teachers’ strike. For employees with school-age children, this may mean facing a child care gap starting next week. As an employer, what are your legal obligations and what can you do to make sure work continues while school’s out?

The Legal Framework

First, the Employment Standards Act provides all employees in the province with up to five (5) unpaid days of family responsibility leave each year for the care, health and education of a child in an employee’s care.  Employers do not have the discretion to … Continue Reading

Update on Overtime Class Actions in Canada

Ontario Court approves unique settlement of overtime class action

Posted in Employment Standards, Litigation, Wage and Hours

Canadian employers have been watching a series of class action claims, with employees claiming hundreds of millions of dollars in unpaid overtime, since 2007. While overtime class action claims are still not possible in British Columbia (for the reasons discussed here), claims can balloon in other provinces when a representative plaintiff claims unpaid overtime for themselves and on behalf of colleagues.

On August 12, 2014, the Ontario Superior Court of Justice approved the settlement of one of these overtime class actions, Fulawka v. The Bank of Nova Scotia.  Our colleagues in Calgary have posted about this recent development … Continue Reading

Saskatchewan: New Hotbed of Labour Law?

Posted in Employment Standards, Labour Relations, Unions, Wage and Hours

With brand new labour and employment legislation, and a major case before the Supreme Court of Canada, Saskatchewan seems to be the current ‘centre of the action’ in Canadian labour law.

Constitutional Right to Strike?

On May 16, 2014, a very significant labour law appeal – Saskatchewan Federation of Labour v. Saskatchewan, from the Saskatchewan Court of Appealwas argued before the Supreme Court of Canada. The Saskatchewan Federation of Labour and other unions argued that two pieces of provincial legislation violated employees’ right to freedom of association protected by the Canadian Charter of Rights and Freedoms.Continue Reading

From the Desk of the HR Manager: Spring Cleaning – Performing an HR Audit

Posted in Discipline, Employment Standards, Litigation, Occupational Health and Safety, Privacy, Termination, Wage and Hours, Workers Compensation, WorkSafeBC

Our colleagues in Ontario recently posted a very useful outline of an HR audit that will help BC employers ensure they stay up-to-date and on top of the wide variety of employment-related demands in their operations. As the saying goes, “an ounce of prevention is worth a pound of cure”.… Continue Reading

Proposed Employment Law Reform in Ontario

Bill 146 Worth Watching

Posted in Employment Standards, Immigration, Investigations, Litigation, Occupational Health and Safety, Unions, Wage and Hours, Workers Compensation

The Ontario government has introduced a bill to make significant changes to employment law in that province.  Every BC employer with employees in Ontario should follow the course of these proposed changes.

As our colleagues in Ontario note, the Bill may not become law under the current government, but the proposals are wide-ranging and follow earlier Law Reform Commission recommendations.  See their analysis here.… Continue Reading

Best of the Blogs

Items of Interest for BC Employers

Posted in Employee Obligations, Employment Standards, Human Capital, Human Rights, Litigation, Privacy, Termination, Wage and Hours

Our firm now publishes 10 different blogs, and they often have items of interest for BC employers.  Here is a sampling of recent posts:

Customer Contacts on Linkedin = Property of the Employer – good news from the UK courts.

Five Employment Issues Facing Retailers – similar issues for retailers in BC.

Notices of Termination – can you terminate an employee before the effective date of their resignation?

Restrictive Covenants and Sale of a Business – how are they interpreted and when will they be enforced?

10 Things You Should Know About BC’s New Limitation Act – including reducing the … Continue Reading

If Employees are Telecommuting …

Bucking the Yahoo! Trend

Posted in Employee Obligations, Employment Standards, Human Capital, Occupational Health and Safety, Wage and Hours

Telecommuting may be on the way out at Yahoo! but it is very much alive elsewhere.  So if you have employees who are working from home, or if you are considering it,  you should think through the employment issues.

The first question is:   Do you have a written agreement to set out the telecommuting rules?  If not, you need one.

The next question is:  What does the telecommuting agreement need to address?  Here is a list of some issues to consider:

  • How do you monitor and manage hours of work?   Unless you fit into one of the exemptions in the
Continue Reading

Month in Review

Posted in Accommodation, Age, Benefits, Compensation, Pensions, Damages, Discipline, Discrimination, Employee Obligations, Employment Standards, Family Status, Human Capital, Human Rights, Immigration, Investigations, Just Cause, Labour Relations, Litigation, Murphy's Laws of HR, Privacy, Recruiting, Termination, Unions, US vs.Canadian Employment Law, Wage and Hours, Workers Compensation, Wrongful Dismissal

The bloggers of BC Employer Advisor issued our first Month in Review to summarize our most recent posts.

Visit the summary here.

 … Continue Reading

Introducing Northern Workplaces, our New Client Newsletter

Posted in Human Rights, Termination, US vs.Canadian Employment Law, Wage and Hours, Wrongful Dismissal

McCarthy Tétrault’s Labour & Employment Group has recently launched a newsletter destined for our U.S. clients and contacts entitled Northern Workplaces.

Northern Workplaces is just one of the tools we are deploying to address labour and employment issues of interest to American-based clients and counterparts who deal with employment matters in Canada. Our first and second issues were sent in September.… Continue Reading

Overtime Class Actions and the Special Position of BC Employers

Posted in Discrimination, Employment Standards, Human Capital, Immigration, Recruiting, Wage and Hours

Big news from Ontario on overtime claims – the Court of Appeal will allow claims for statutory overtime by CIBC and Bank of Nova Scotia employees to proceed as class actions.

Fortunately for British Columbia employers, such class actions are still not possible in British Columbia.

CIBC won the first two rounds of the fight, and BNS was hoping to get the same break at the Ontario Court of Appeal.  Instead, both class action claims have been certified, allowing the overtime claims on behalf of the banks’ employees to proceed.  Subject to appeals to the Supreme Court of Canada, employees … Continue Reading

Pay for No Work – Part II – Travel Time

Posted in Employment Standards, Wage and Hours

An earlier post looked at having to pay for on-call time under the Employment Standards Act (British Columbia). This post looks at travel time.

Travel time may be payable, depending on whether the travel is at the direction of the employer. Commuting from home to work and back again is generally not payable, even if using a company vehicle. But time spent going from home to work will be payable if the employee must bring employer-provided materials or equipment from home, move materials from one location to another, or pick up or deliver materials or equipment on the way to … Continue Reading

Restrictions on Withholding Pay

Posted in Benefits, Compensation, Pensions, Employment Standards, Wage and Hours

The Employment Standards Act (British Columbia) prohibits an employer from withholding or deducting any part of wages unless the employee has consented in writing. Problems frequently arise when employment terminates and the employer seeks to recover loans, advance payments (of wages or vacation pay) or other debts from the employee by way of deductions from the final pay.

Watch out for

  • poorly documented loan agreements or advances;
  • employees taking vacation before it is fully earned;
  • adjustments to commission earnings where the amount drawn exceeds the amount earned; and
  • accidental overpayments.

Possible Solutions

For any loan or advance, obtain a signed … Continue Reading

Pay for No Work – Part I – On-Call

Posted in Employment Standards, Wage and Hours

In addition to vacations and statutory holidays, there are two key times when an employee who is not performing any productive work may be entitled to be paid under the Employment Standards Act (British Columbia):

  • while on-call other than at home; and during travel time.

On-call employees are “at work” and are entitled to be paid regular wages as well as overtime for those hours of work. The Act provides that an employee is “at work” while on call at a location designated by the employer, unless that location is the “employee’s residence”, a term which is narrowly construed and … Continue Reading

Commissioned Salespeople – Overtime/Statutory Holidays/Vacation

Posted in Employment Standards, Wage and Hours

The Employment Standards Act (British Columbia) starts from the presumption that employees who get some or all of their pay in commissions are entitled to be paid at least minimum wage for all hours worked, overtime for all overtime hours, and for statutory holidays.

In earlier posts, we reviewed the special rules and exemptions  and looked at minimum wage.

Unless one of the exemptions applies, commissioned employees are entitled to be paid overtime at premium rates in accordance with the Act for hours worked in excess of eight per day or 40 per week, and to be paid for … Continue Reading

Commissioned Salespeople – Minimum Wage

Posted in Employment Standards, Wage and Hours

The Employment Standards Act (British Columbia) starts from the presumption that employees who get some or all of their pay in commissions are entitled to be paid at least minimum wage for all hours worked, overtime for all overtime hours, and for statutory holidays. Subject to the exemptions and special rules mentioned in a previous post, here are rules on minimum wage for commissioned employees.

The Employment Standards Branch determines whether a commissioned employee has earned minimum wage by dividing the total earnings in a “pay period” by the number of hours worked. A “pay period” cannot be more … Continue Reading

Commissioned Salespeople – Special Rules and Exemptions

Posted in Employment Standards, Wage and Hours

The Employment Standards Act (British Columbia) starts from the presumption that employees who get some or all of their pay in commissions are entitled to be paid at least minimum wage for all hours worked, overtime for all overtime hours, and for statutory holidays. There are some special rules and exemptions:

Commissioned employees are exempt from sections 35 and 40 of the Act (overtime) and Part 5 (statutory holidays) as long as what is paid in a pay period is greater than what would have been earned under those provisions based on minimum wage or “base rate”, whichever is greater. … Continue Reading

What Makes an Independent Contractor?

Posted in Employee Obligations, Employment Standards, Wage and Hours

Employee or independent contractor?  It’s an important question with important consequences.

The question can arise in different contexts, can be resolved with different tests, and can lead to different results.  But looking at the four common tests will help you determine the right answer.

(1) The Control Test

The control test has been summarized as the difference between telling a contractor what to do, and telling an employee how to do it.

The amount of reporting to management, and the amount of control over when, where and how the work is done, are minimized in a contractor relationship.

(2) Ownership Continue Reading

The Limits to Averaging Agreements

Posted in Employment Standards, Wage and Hours

The Employment Standards Act (British Columbia) allows some flexibility in hours of work without overtime pay through the use of averaging agreements.

Unfortunately, the requirements for an enforceable averaging agreement are often impractical. An averaging agreement must:

  • be agreed, in writing, with each employee;
  • specify the start and end dates;
  • be signed by both parties;
  • specify the hours for each day;
  • specify the length, which must be one, two, three or four weeks unless varied by the Director of Employment Standards;
  • specify the number of times the agreement may be repeated;
  • not average more than 40 hours per week;
  • use
Continue Reading

The Overtime Trap – Part II

Posted in Benefits, Compensation, Pensions, Employment Standards, Wage and Hours

Managers

“Managers” are exempt from the overtime provisions of the Employment Standards Act (British Columbia). But, beware of the narrow definition, and the potential for overtime claims at straight time.

Not everyone called or considered a manager in the workplace is exempt. Only those who are employed in an executive capacity, or whose principal responsibilities are to supervise or direct human or other resources, are “managers” under the Act.

Even then, a manager may still qualify for overtime at straight time.  If the manager’s contract links salary to a certain number of hours worked, or links time off in lieu … Continue Reading

The Overtime Trap – Part I

Posted in Benefits, Compensation, Pensions, Employment Standards, Wage and Hours

The Employment Standards Act (British Columbia) requires that an employer pay an employee overtime wages if it “requires, or directly or indirectly allows, the employee to work more than 8 hours a day or 40 hours a week.” An employee who can provide some evidence of starting early, staying late, working through lunch or doing work on the BlackBerry after hours will get overtime pay even if the employer never asked for the extra work to be done.

The general overtime rules do not apply to certain types of employees (more about that in a future blog), but there is … Continue Reading