Employment Law

Author: J. Geoffrey Howard

Government tables latest round of Employment Standards Act amendments

Readers will recall that the NDP government committed to a comprehensive revision of the Employment Standards Act. Only weeks after the March 31, 2019 deadline for submissions from the public, the government tabled another series of amendments to the Employment Standards Act (ESA) on April 29, 2019. These amendments include:

Two New Types of Statutory Leaves

Employees will be able to take “critical illness or injury leave” of up to 36 weeks a year to provide care or support to an ill or injured family member under 19 and up to 16 weeks to provide care or support to family members over 19. This significantly expands existing leave rights to care for family members. Existing  ESA compassionate care leave rights to care for a terminally ill family member will remain available, despite the clear potential overlap with the new leave. That potential overlap is not addressed in the amendments.

Employees who are victims of domestic violence will be entitled to 10 non-consecutive days of leave to deal with common issues victims face such as finding new accommodation.  In addition, they may take a 15 week leave to deal with the consequences of domestic violence, which can be taken in multiple periods with the employer’s consent.

These new leaves come on top of new and expanded leaves introduced last year and continue a Canada wide trend of forcing employers to give employees time off for personal reasons with a guarantee of reinstatement.

Wage Recovery, Investigations and Penalties

The bill extends the time period for wage recovery from 6 months to 12 months with the possibility of extending the period to 24 months under some circumstances to be prescribed by regulation. For employees claiming unpaid wages such as overtime, this significantly increases the potential cost of a claim.

It also empowers the Employment Standards Branch to:

  • adjudicate a complaint past the 6 month limitation period in instances where “special circumstances exist or existed that preclude or precluded the delivering of a complaint within the applicable time frame and an injustice would otherwise result”; and
  • waive the previously mandatory penalties for contraventions of the Act where an employer complies with requirement to pay wages after the complaint is filed or it is determined that there was a legitimate reason for the contravention.

The bill also confirms employees who give notice of their resignation and then are terminated without cause during the resignation notice period are entitled to receive the lesser of the balance remaining in the resignation notice period or the amount the employer must pay if terminating without cause. It is unclear if the latter is limited to ESA minimum termination pay or may include greater contractual severance. This amendment confirms existing practise and contract law on the same point.

Stronger Child Employment Protections

The bill raises the age a child may work from 12 to 16 years old and places tighter restrictions on hazardous work 16 to 18 year olds may perform, while providing exemptions that allow 14 to 15 year olds to perform light work.  Notably, the legislation maintains existing regulations allowing children to work in recorded and live entertainment with parental consent.

Gratuity Regulation

The bill creates a new legal framework for regulating gratuities (tips) and tip pooling, defining them as “wages” protected by and collectible under the ESA and protecting those tips from employer encroachment.

The Right of Unions and Employers to Bargain for lesser/other standards

Under the current ESA, unions and employers can agree to different and potentially lesser standards for certain ESA standards such as hours of work and overtime. The bill will reinstate the prior rule that collective agreements must “meet or exceed” ESA standards on all topics but will this will only take effect with the next collective agreement.

Record Keeping

The bill extends the time period for retaining records (including payroll, averaging agreements, agreements relating to special clothing and substitution of another day for a statutory holiday) from 2 to 4 years.

Next Steps

It is expected this legislation will be passed substantially as tabled in coming months. Employers should stay tuned for confirmation they are in effect, as well as announcements of further ESA amendments.

For more information on how to manage these changes, contact me at: Geoffrey Howard ghoward@meplaw.ca; 604 891-1184. To unsubscribe from these BC Employer Alerts, email nmorrow@meplaw.ca


Introducing the newest member of the MEP Employment and Labour Law Team:

I am pleased to welcome James Hsu to the team. After articling and working at a major national firm, James has joined MEP, where he will be working primarily in the Employment and Labour group, collaborating  closely with me in assisting our growing client base. Feel free to also contact James to discuss these amendments or other employment issues. He can be reached at:

604 891-1158