Myth or fact?
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.
What you should know
“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, BC
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.
Doubts are resolved in favour of the worker
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.
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. 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.
Other factors include:
Clients. Is the person paying you your only gig?
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.
We dig into these factors in more detail (with example scenarios!) in our page on figuring out if you are an independent contractor.
You may be an "employee" even if you sign something saying otherwise
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.
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.
An agency that can help
If you work in a federally-regulated workplace, Employment and Social Development Canada can help you understand your rights in the workplace.
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.
Reach out to a regulatory body
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.
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 Employment Standards Branch provides details of each of these categories.
The Employment Standards Act does not 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.
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
annual vacation and vacation pay
minimum notice provisions
If provisions of the collective agreement fall below those minimum standards, then the Act applies instead.
Speak to your union representative
If you belong to a union, speak with your union representative to learn about your rights in the workplace.
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 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.
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.”
If you’re not covered
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.