By Samantha Stepney.
A few weeks ago, we posted the first instalment of my two-part series on exclusions under BC’s Employment Standards Act (the Act), where I reviewed various categories of employees who are excluded from ALL of the benefits and protections of the Act.
In this second and final instalment, I turn my attention to those employees who are excluded from specific parts or sections of the Act and the Employment Standards Regulation (the Regulation) (rather than the Act as a whole). Because the provisions of the Act and Regulation setting out partial exclusions are many and detailed, this post focuses on just a few of the most common such exclusions.
If a collective agreement contains provisions relating to certain issues covered by the Act (for example, hours of work or overtime, statutory holidays, annual vacation or vacation pay, seniority retention, recall, termination of employment or layoff), the Part or provision of the Act that relates to those issues does not apply to employees covered by the collective agreement (Act, s.3).
Further, section 63 of the Act (Liability resulting from length of service) does not apply to an employee covered by a collective agreement who:
- is employed in a seasonal industry in which the practice is to lay off employees every year and to call them back to work,
- was notified on being hired by the employer that the employee might be laid off and called back to work, and
- is laid off or terminated as a result of the normal seasonal reduction, suspension or closure of an operation (Act, s. 65).
In British Columbia, managers are excluded from Parts 4 (Hours of Work and Overtime) and 5 (Statutory Holidays) of the Act. The Regulation defines a “manager” as:
- a person whose principal employment responsibilities consist of supervising or directing, or both supervising and directing, human or other resources, or
- a person employed in an executive capacity.
To determine if an employee is a manager, the Employment Standards Branch considers:
- how much the individual can, on his/her own or otherwise, materially and substantially affect the employment conditions of those for whose work he/she is held responsible by the organization, and
- what kind of responsibilities the employee has with regard to company resources, even if there are certain checks on their authority.
The following factors are not determinative of whether an employee is a “manager” for the purposes of the Act:
- the title given to a position or the fact that other employees refer to that person as a “manager”,
- the form of payment of wages (e.g. salary, hourly wage, commission), and /or
- the responsibility to open and close the business for the day.
A salesperson paid entirely or partly by commission is excluded from sections 35 (Maximum hours of work before overtime applies) and 40 (Overtime wages for employees not working under an averaging agreement) and Part 5 (Statutory Holidays) of the Act on the condition that all wages earned by the employee in a pay period exceed the wages that would be payable under those provisions when calculated at the greater of the employee’s base rate or the minimum wage under the Act (Regulation, s. 37.14).
Particular categories of commission salespeople are excluded from other parts of the Act, including commissions salespeople who sell heavy industrial or agricultural equipment, sailing or motor vessels (s. 37.14(2), automobiles, trucks, recreation vehicles or campers (s. 37.14(3) and (4)).
High Technology Companies
High technology professionals who are employees of “high technology companies” are excluded from certain parts of the Act. A “high technology company” is defined as a company where more than 50 percent of employees meet the definition of a high technology professional, are managers of persons meeting the definition of a high technology professional, or are employed in an executive capacity. “High technology professional” includes:
a) an employee who is primarily engaged in applying his or her specialized knowledge and professional judgment to:
i) investigate, analyze, design, develop or engineer an information system that is based on computer and related technologies, or a prototype of such a system, or
ii) investigate, analyze, design, develop, engineer, integrate or implement a scientific or technological product, material, device or process, or a prototype of such a product, material, device or process,
but does not include a person employed to provide basic operational technical support,
b) an employee who is primarily engaged in applying his or her specialized knowledge and professional judgment to carry out scientific research and experimental development as defined in section 248 (1) of the Income Tax Act (Canada), and
c) an employee who is engaged as a sales or marketing professional in relation to
i) a service or system described in paragraph (a)(i),
ii) a product, material, device or process described in paragraph (a)(ii), or
iii) scientific research or experimental development described in paragraph (b),
but does not include a person employed in the retail sale of any of these things.
Part 4 (Hours of Work and Overtime), other than section 39 (No excessive hours) and Part 5 (Statutory Holidays) of the Act do not apply to high technology professionals.
Employees employed at one or more construction sites by an employer whose principal business is construction are excluded from section 63 (Liability resulting from length of service) and 64 (Group terminations) of the Act (Act, s. 65).
Part 4 of the Act (Hours of Work and Overtime), other than sections 36 (Hours free from work) and 39 (No excessive hours), does not apply to a resident caretaker (Regulation, s. 35).
A resident caretaker is defined as a person living in an apartment building that has more than 8 residential suites who is employed as a caretaker, custodian, janitor or manager of that building.
Section 34 of the Regulation excludes a number of employees from Part 4 of the Act (Hours of Work and Overtime), including, among others:
- fishing, hunting, and wilderness guides,
- teachers, noon hour supervisors, teacher’s aides, supervision aides, instructors, professors, tutors, school bus drivers, and live-in camp leaders,
- commercial travellers (travelling sales people),
- police officers,
- fire fighters,
- live-in home support workers,
- night attendants, and
- residential care workers.
Teachers are also excluded from section 63 of the Act (Liability resulting from length of service).
Employees in the following categories are also excluded from various provisions of the Act:
- mineral exploration, mining, oil and gas,
- silviculture, aquaculture, farming, and commercial fishing/logging,
- employees who work on boats, ferries and trains and as drivers (e.g. taxi drivers, bus drivers, truck drivers, school bus driver),
- election workers,
- newspaper carriers,
- student nurses,
- police recruits,
- volunteer/auxiliary firefighters, and
- children who work in the entertainment industry.
For a comprehensive review of all exclusions, we recommend thoroughly reviewing the Act and the Regulation, which you can find on the BC Employment Standards Branch website here.