British Columbia, Canada, has broadened and clarified its ability to investigate employment compliance matters and will tighten rules for hiring children younger than 16 years old under changes to the province’s Employment Standards Act (ESA).
The changes arose from 2019 amendments to the ESA meant to ensure employment standards are evenly applied, properly enforced, and reflect workers’ and employers’ evolving needs.
New Investigatory Features
As of Aug. 15, 2021, new rules went into effect governing investigation, complaint and determination processes under the ESA. Among other changes, British Columbia’s employment standards director may conduct an investigation to ensure compliance with the ESA “at any time for any reason,” and expand a probe stemming from one worker’s complaint, according to the amendments.
“The director of employment standards has always had the power to investigate compliance with the ESA and Employment Standards Regulation regardless of whether or not a complaint has been filed,” said George Vassos, an attorney with Littler in Toronto. “The changes now make it clear that the director can initiate or stop or postpone an investigation ‘at any time or for any reason.’ “
In addition, he said, “The director will now be able to expand an investigation of one worker’s complaint to the broader workplace if needed. This certainly strengthens protections for workers.”
Other employees need not sign on to the original complaint for the director to broaden the investigation, noted Ritu Mahil, an attorney with Lawson Lundell LLP in Vancouver. If the wider probe isn’t completed or doesn’t resolve the matter, the director must rule on the original complaint.
The employment standards director isn’t required to hold hearings when investigating but must give investigated parties the opportunity to respond, Mahil noted. When an investigation concludes, the law now requires the director to issue a written report summarizing the findings, she said.
The report must be provided to the complaining party, the person cited in the complaint and anyone whom the director believes deserves an opportunity to respond. “This step provides procedural fairness for everyone involved before a decision is made,” Vassos said.
While fired employees must file any complaint within six months of their last day of work, the new rules allow a worker an extension if the director believes that special circumstances delayed the filing or that an injustice would otherwise occur without the extra time.
The director must investigate any complaint considered to be filed validly. Under the new provisions, the director can now use alternative dispute resolution during an investigation, calling on a neutral mediator to help settle or arbitrate matters. Vassos called the option beneficial for employers and employees.
Child Employment Rules
ESA amendments also put into place several new rules going into effect on Oct. 15 related to hiring children, including specifying the type of work permitted and permissions required.
“New changes to employment standards will better protect young people at work by raising the general working age in British Columbia from 12 to 16 and defining the types of jobs appropriate for those under 16,” the government said in a press release, which noted the new standards bring the province in line with international standards for children’s employment.
“It’s intended to protect young workers and to ensure that they’re performing work that’s safe,” said Sabrina Anis, an attorney with Miller Thomson LLP in Vancouver.
Before the changes, British Columbia was the only Canadian province that allowed the employment of children as young as 12, who were sometimes hired to work on construction sites or with heavy machinery, according to the government. Workers ages 14 and younger received more than $1.1 million in work-related disability payments from 2007 to 2016, the release said.
The new rules will restrict the duties that minors younger than 16 years old may perform to “light work,” such as lifeguard, golf caddy, camp counselor, retail, food service, writing, graphic design and yard work. Children ages 12 and older nonetheless may work in businesses or on farms owned by an immediate family member so long as the job meets safety criteria.
Under the updated provisions, Vassos said:
- Employers hiring 12- and 13-year-olds must get permission from the employment standards director in addition to a parent’s or guardian’s written consent, in most cases.
- Those hiring 14- and 15-year-olds must obtain written parental consent and employ the children only in approved “light work” unlikely to harm the health or development of someone that age.
Dinah Wisenberg Brin is a freelance writer and reporter based in Philadelphia.