The ESB: A Force to Be Reckoned With

Fiona AndersonBy Fiona Anderson.

Employers take note: The BC Employment Standards Branch (the ESB) can land a hefty punch against employers who are found not to be complying with the Employment Standards Act (the ESA).

Many smaller employers are not one-hundred per cent sure of their obligations under the ESA, often assuming that if they are fair, there’s no problem. But while being fair is good, it’s not good enough if you’ve violated the ESA.

For example, if an employee works more than 8 hours in a day, that employee is entitled to overtime pay at 1.5 times her normal wage. Suggesting coming in late the next day to recoup the time may be a nice thing to do. But it’s only in compliance with the ESA if the time off mirrors the overtime rate. In other words, one hour of overtime has to be replaced with 1.5 hours of time off. The ESA sets out a number of other fundamental rules employers must follow, such as those regarding meal breaks and the minimum number of hours an employee must have off between shifts and during the week.

And the ESB goes by this ESA rule book. So it’s important than an employer who receives a complaint from the ESB take it seriously. While they may believe they have been fair, the ESB could find otherwise.

An ESB complaint can be filed by a current or former employee. Once it is filed, an Employment Standards Officer will contact both parties in an effort to resolve their issues. However, if resolution isn’t possible, the matter may go to an adjudication. And an employer who ignores this does so at its peril.

Because once an adjudicator is appointed, a hearing will go ahead with or without the employer and a finding – called a determination — will be made based on the best evidence before the adjudicator. That means the evidence of the employee, if the employer doesn’t attend.

If there is a determination that an employer hasn’t complied with the ESA’s rules and owes a current or or former employee money, there is a mandatory penalty added on to what is owed that ranges from $500 to $10,000 depending on how many contraventions the employer has had in the past. This is in addition to interest charged on the money owed.

And the ESB has the means to enforce payment by demanding payment from third parties who owe the employer money, or even by seizing assets. Directors or officers of a corporate employer could also be personally liable for up to two months’ wages per employee.

So, if you are an employer and receive an email from the ESB, don’t ignore it. Take it seriously and work with the ESB to respond to the claim and resolve the issue without going to adjudication.

 


NOT LEGAL ADVICE. Information made available on the Kent Employment Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.

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