Trevor Thomas is an employment lawyer with Kent Employment Law. Trevor combines fresh ideas with solid legal advice, appealing to employers and employees who are seeking innovation and change management. An engaging speaker and respected writer, Trevor is often asked to share his legal expertise at community and professional events. He is the editor of the employment law section of Clicklaw's Legal Help for British Columbians.
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Learn if you’re protected under BC’s employment standards law.
The main provincial law that protects workers in British Columbia is called the Employment Standards Act. It sets minimum standards for wages and working conditions. However, some workers are excluded from the protection of this law, or parts of it. Your rights in the workplace and your options to deal with problems depend on whether or not you’re covered. Learn if you’re protected under BC’s employment standards law.
Most workers are covered
“I work two jobs. One of my employers said I wasn’t entitled to extra pay for working on stat holidays, as I was an ‘independent contractor.’ I made a complaint to the Employment Standards Branch. They found the Employment Standards Act applies to me. They said if there’s any doubt whether an exception to the Act applies, it’s resolved in favour of the worker.”
– Melissa, Burnaby
The Employment Standards Act applies to employees. The definition of who is an employee is very broad. It’s intended to cover as many work relationships as possible.
You’re seen to be an employee under this law if any of the following apply:
- You perform work for another for wages. It doesn’t matter how many hours you work or if your job is permanent or temporary.
- An employer allows you to perform work normally done by an employee. This can be done directly or indirectly. For example, if an employee asks you to cover their shift, you’re an employee. Even if your employer doesn’t know about this arrangement.
- You’re being trained by an employer for their business. This includes a trial period for a prospective employee.
- You’re on leave from an employer. This includes maternity or parental leave, or illness or injury leave.
- You have a right of recall. This can come up if you’re temporarily laid off. It means you get to return to work.
If you meet the definition of employee, you’re covered by the Employment Standards Act unless an exception applies. There are a number of exceptions. We explain them below.
If there’s any doubt whether an exception to the Employment Standards Act applies, it is resolved in favour of the worker. The Act applies.
Exception if you work as an independent contractor
The Employment Standards Act doesn’t cover independent contractors. An independent contractor is seen to be self-employed (and so not an “employee”). In other words, they run their own business.
Figuring out whether someone is an employee or an independent contractor can be tricky.
Factors in play
There are several factors to consider. An employee (as defined in the Act) is a person “entitled to wages for work performed for another.” An employer is a person who has “control or direction of an employee.”
The topic of direction and control is important. Does the person paying you direct the work and say how it’s done? If the answer is “Yes,” that leans towards you being seen as an employee.
Independent contractors are less controlled by the employer. A contractor would be more likely to set their own hours, determine how to perform the work, and provide their own equipment.
A contractor also shares more of the risk. They’re more likely to be financially affected than an employee if the business does well or poorly.
Other factors include:
- Clients. Is the person paying you your only gig or one of many?
- Ongoing relationship. Have you worked for them for a long time?
- Connection to business. Is the work you do closely connected to the purpose of the business?
More “Yes” answers mean you are more likely to be seen as an employee than as an independent contractor.
The Employment Standards Branch is the government office that enforces the Act. They provide helpful examples of how they decide this question. Any doubt is resolved in favour of the worker. The Act is intended to protect as many workers as possible.
Is someone an independent contractor or an employee?
Degree of direction and control
Worker is more in control, setting their own hours, determining how to perform the work, and providing their own equipment.
More controlled by the employer, who sets hours, decides how work should be performed, and provides equipment.
Is hired to do a specific time-limited job.
Is in an ongoing working relationship.
Connection to business
The work performed is not integral to the business.
The work performed is closely connected to the purpose of the business.
|Number of clients||Has a number of clients.||Relies on a single employer or business as their primary or sole source of income.|
More chance of profit and risk of loss.
Less (or no) chance of profit or loss.
Calling someone an independent contractor doesn’t mean they are. Even if you sign something saying you’re an independent contractor, you may still be an employee under the law. Any agreement that tries to get around the requirements of the Employment Standards Act is not valid.
Exception if you work in a federally-regulated workplace
If you work for an employer regulated by the federal government, you are not covered by the Employment Standards Act. Instead, a federal law called the Canada Labour Code applies. Around 6% of Canadian workers fall into this category.
Which employers are federally regulated? Examples include banks, airlines, and telecoms. The Canadian government website lists federally-regulated businesses and industries.
There are many similarities in how the Employment Standards Act and the Canada Labour Code protect workers. Both, for example, have rules for minimum wage, overtime pay, and holidays. But there are also important differences, especially for workers fired without cause.
If you work in a federally-regulated workplace, Employment and Social Development Canada can help you understand your rights in the workplace.
Exception if you work in certain licensed professions
The Employment Standards Act doesn’t apply to people working in certain licensed professions. Examples include doctors, dentists, lawyers, accountants, architects, engineers and realtors. The Employment Standards Branch lists the professions not covered by the Act.
This doesn’t mean these professionals have no rights at the workplace. Other provincial laws, such as human rights laws and workers compensation laws, still apply — even though the Employment Standards Act doesn’t.
If you work in a licensed profession not covered by the Employment Standards Act, the body that regulates the profession can help you understand your rights in the workplace. For example, the Architectural Institute of British Columbia regulates architects in the province.
Exception if you’re a student, a babysitter, or enrolled in certain government incentive programs
The Employment Standards Act does not apply to students working in certain jobs:
- secondary-school students working at their school or in work-study programs
- primary- or secondary-school students working as newspaper carriers 15 hours a week or fewer
The Act doesn’t apply to babysitters. A babysitter is someone employed solely to attend to a child or other person in someone else’s private residence. It’s not someone working in a day care facility.
The Act doesn’t apply to people who are in certain government incentive programs while receiving income assistance, disability benefits, or employment insurance.
The Employment Standards Branch provides details of each of these categories.
If you’re a member of a union
Workers who belong to unions are covered by the collective agreements negotiated between their union and employer. Any collective agreement made or renewed after May 30, 2019 must meet or exceed the minimum standards of the Employment Standards Act in a number of areas. These include:
- hours of work and overtime
- statutory holidays
- annual vacation and vacation pay
- minimum notice provisions
If provisions of the collective agreement fall below those minimum standards, then the Act applies instead.
If you belong to a union, speak with your union representative to learn about your rights in the workplace.
If you work in an occupation that’s partially excluded from the Act
Some occupations fall partly outside the Employment Standards Act. This means some of the laws apply to these occupations but others do not. Here are some examples. The Employment Standards Branch provides a full list of occupations that are excluded from parts of the Act.
A “high-tech professional” is excluded from the sections of the Act dealing with hours of work, overtime, and statutory holiday entitlements. The Employment Standards Branch explains who this applies to.
Silviculture workers (workers involved in reforestation) who are paid “primarily on a piece-rate basis” are excluded from some provisions of the Act dealing with split shifts, hours of work, and overtime. The Employment Standards Branch provides details.
Farm workers are excluded from some sections of the Act, such as the statutory holiday entitlements. The Employment Standards Branch explains how the Act applies to farm workers.
Fin fish farm workers also have specific sections of the Act, involving work hours and overtime, that don’t apply. The branch provides details.
Workers paid on a commission or incentive basis are excluded from specific sections of the Act, including the overtime requirements. The branch provides details.
If you’re a manager
Managers are excluded from the parts of the Employment Standards Act that cover hours of work, overtime, and statutory holiday pay. They are otherwise covered (if none of the other exceptions apply).
A manager is defined as a person:
- whose main duties are supervising or directing human or other resources, or
- employed as an executive.
Key considerations in determining if someone is a manager are:
- How much can they “materially and substantially” affect the employment conditions of those for whose work they are responsible?
- What kind of responsibilities do they have with respect to company resources?
The title “manager” doesn’t legally make someone a manager. Nor does it matter if other workers refer to a person as a “manager.”
The Employment Standards Branch provides more detail on what goes into determining if someone is a manager.
If you’re not covered by employment standards legislation
Just because you’re not covered by the Employment Standards Act doesn’t mean you have no rights as a worker. Other laws apply to those who are excluded from the Act. For example, human rights laws protect all workers from discrimination.
If you feel your rights have been violated at work, seeking legal advice can help. It’s a way to better understand which laws apply to you and what your options are to resolve your dispute. There are options for free or low-cost legal advice.
Learn your legal rights around taking a vacation.
Learn your rights around taking sick days.
Learn your rights if you're temporarily laid off.
Learn about EI benefits, and how to apply.