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Minimum Employment Standards: Are You Covered?

Olivia Oszkiel

Associate
February 7, 2024

Most Workers (Employees) are Covered, but…

The primary piece of legislation that governs workers in British Columbia and sets minimum standards for working conditions is the Employment Standards Act, RSBC 1996, c 113 (the “ESA”).

According to section 3(1), the ESA applies to all employees and defines an ‘employee’ in section 1 as:

  • A person, including a deceased person, receiving or entitled to wages for work performed for another
  • A person an employer allows, directly or indirectly, to perform work normally performed by an employee
  • A person being trained by an employer for the employer’s business
  • A person on leave from an employer
  • A person who has a right of recall

That said, certain workers are fully or partially excluded from the protection of the Act and many such exclusions are set out in the Employment Standards Regulation, BC Reg 396/95 (the “ESR”):

Exception: Contractors

The ESA does not apply to independent contractors. An independent contractor is a person who is self-employed. Although the question of whether someone is an employee or a contractor is not always clear, one of the key considerations to ask is: whether the worker is in business for themself or for someone else. The courts have also developed several common law tests to consider, including:

  • How much direction and control the worker is subject to?
  • Whether the worker operates their own business and has their own clients?
  • Whether the worker has a chance of profit or a risk of loss?
  • Whether the work they are doing is integral to the business and whether there is an ongoing relationship?

The BC Government provides a factsheet to help determine if a worker is an employee or contractor.

Exception: Licensed Professionals

According to section 31 of the ESR, professions and occupations excluded from the ESA are as follows:

  • Accountants
  • Lawyers
  • Chiropractors
  • Dentists
  • Engineers
  • Architects
  • Insurance Agents
  • Land Surveyors
  • Doctors
  • Naturopaths
  • Optometrists
  • Real Estate Agents
  • Securities Traders
  • Veterinarians
  • Foresters

The BC Government provides further information regarding some of the above listed occupations.

Exception: Federally-Regulated Workers

Workers who work for an employer regulated by the federal government are governed by the Canada Labour Code, RSC 1985, c L-2. Examples of federally regulated industries and workplaces are listed on the following Canadian Government website and include, but are not limited to, the following:

  • Banks
  • Airlines
  • Postal and courier services
  • Most federal Crown corporations
  • Radio and television broadcasting
  • Road transportation services

Exception: Unionized Workers

Workers who are members of unions are covered by the collective agreement negotiated between their union and employer.  That said, pursuant to section 3(2) of the ESA, any collective agreement made or renewed after May 30, 2019 must meet or exceed the minimum standards of the ESA in a number of areas. If they do not, then the ESA applies instead.

Exception: Managers

In section 1, the ESA defines a ‘manager’ as:

  • A person whose principal employment responsibilities consist of supervising or directing, or both supervising and directing, human or other resources
  • A person employed in an executive capacity

Managers are excluded from certain parts of the ESA including work, overtime, and statutory holiday pay.

The BC Government provides a helpful factsheet to determine if an employee is a manager.

Exception: Partially-Excluded Occupations

Certain industries or types of workers are subject to specific regulations that only apply to them and are thus only partially governed by the ESA, including:

  • Aquaculture
  • Commission Sales
  • Domestic Workers
  • Farm Workers
  • High Technology
  • Loggers Working in the Interior
  • Oil and Gas
  • Resident Caretakers
  • Silviculture Workers
  • Taxi Drivers
  • Truck Drivers
  • Young People

For more information on the above sectors, please see further information provided by the BC Government.

Exception: Workers Performing Specific Types of Employment Duties or Receiving Income Assistance/Benefits

Pursuant to section 32 of the ESR, certain persons, when performing specific types of employment duties, or when receiving certain types of income assistance or benefits are not covered by the ESA.

The BC Government provides further details regarding these workers, including:

  • Students
  • Babysitters
  • Home Care Workers
  • Persons receiving Employment Insurance

Know Your Rights and Responsibilities

Whether you are a worker who is wondering if you are an employee entitled to the minimum employment standards or an employer seeking clarification regarding employment standards obligations, it is important to have effective legal support.

If you need assistance or want to discuss this issue, reach out to us! We are here to help.