Author: Alejandra Henao, KSW Lawyers Employment & Labour Group (ah@old.kswlawyers.ca)

British Columbia’s Employment Standards Amendment Act, or Bill 8, received Royal Assent on May 30, 2019.  The bill proposed gradual implementation of changes, some of which came into force on August 15, 2021, and others on October 15, 2021. Bill 8 was influenced by the 2018 British Columbia Law Institute report.    

In this article we will briefly discuss the August amendments, which apply to investigations, complaints, and determinations. The October changes will affect the rules and processes around hiring children.

Investigations

• Recent changes in the Act enforce the Director’s powers outlining that they can investigate compliance with the Act “at any time or for any reason.” As background, the Branch has the legal authority to check if employers are following the Act or Regulations.  Section 76 of the Act allows a Branch Director to conduct an investigation to ensure compliance with the Act and regulations.  The policy says that a Director is not limited to reacting to complaints and can take whatever initiatives are considered advisable to obtain compliance with the Act.  This gives the Branch a wide range of powers to investigate employers.  The Branch can receive an initial complaint from an employee and investigate their concerns and that of other employees. A Director can ask the employer to provide copies of other employee’s contracts to see if they too, contravene the Act, for example. 

• Another important change to the Act involves the use of alternative dispute resolution (ADR) during investigations. ADR are alternate ways to resolve legal disputes, including but not limited to negotiation, mediation, collaborative practice, and arbitration.  The Director can rely on these proceedings to help the party or parties reach an agreement or comply with the Act.  The Director can now call upon a neutral party to hear and mediate the case. 

• Further, although a Director is not required to hold an oral hearing, they are now required to draft then to serve a summary of their investigations and findings on the parties involved. The parties in receipt of the Director’s summary will have an opportunity to respond to its contents.  This step provides procedural fairness for everyone involved before a decision on an employment investigation is issued.

Complaint Process

There are also procedural changes. 

• An employee whose employment is terminated must file a complaint within 6 months of their last day of employment. However, the new provisions allow terminated employees to ask the Director for permission to file a complaint past the six months from their last day at work. This change welcomes late applications so long as there are justified special circumstances that prevented the applicant from meeting the application deadline.  The Director assessing the late application has the discretion to grant an extension of time. 

As a bit of background information, once a complaint is filed, the Branch contacts all parties and explains the provisions of the Act. Complaints are often resolved at this stage. Otherwise, your complaint may proceed to an investigation and a determination of whether the Act was contravened.  The Director can order administrative penalties for every contravention of the Act and order payment of unpaid wages.  It is important to note that interest is added to the unpaid wages an employee is owed and it is accrued until the date of payment. 

Stay tuned for further updates on more changes to come.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to any workplace matters, please contact Ale Henao or Chris Drinovz.

Alejandra (Ale) Henao joined the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP) in 2020. Ale has a particular expertise in WorkSafeBC and human rights claims, and also practices employment law. Ale’s extensive volunteer experience includes being an executive member of the TRU Black Law Students’ Association and creating and facilitating content and programs for the West Coast Women’s Legal Education and Action Fund (LEAF).

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce.

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