As a lawyer I often begrudge the fact that I am excluded from the application of the Employment Standards Act (and, in particular, the overtime provisions of the Act!). However, misery loves company.
The BC Employment Standards Act and the BC Employment Standards Regulation contain a multitude of exclusions that leave many employees without the benefits and protections provided for by the Act relating to things like wages, hours of work, leave, vacation pay and overtime. While it would be unfeasible (and unhelpful!) to list all these exclusions in detail here, below is a broad overview of several categories of employees who are excluded from the Act as a whole. (In the second instalment of this two-part post, coming soon, I will review the categories of employees who are protected by the Act in general, but are excluded from specific parts or sections of the Act and the Regulation.)
The Act does not apply to independent contractors. The Employment Standards Branch considers an independent contractor to be a person who is self-employed – that is, in business for him or herself.
The courts have developed tests that are useful in determining whether or not a worker is an independent contractor as opposed to an employee. These tests include how much direction and control the worker is subject to, whether the worker operates his/her own business and has his/her own clients, whether the worker has a chance of profit or a risk of loss, whether the work the worker is doing is integral to the business, and whether there is an ongoing relationship between the worker and the business. The fact that a worker is called an “independent contractor” or is paid as an independent contractor is not determinative.
Professions and Occupations
Various professions and occupations (as defined in the Acts that govern them) are excluded from the application of the Act, including architects, chartered accountants, lawyers, chiropractors, dentists, engineers, insurance agents/adjusters, land surveyors, doctors, real estate agents, stock brokers, veterinarians, and foresters (Regulation, s. 31).
The Act does not apply to “sitters” (Regulation, s. 32(1)(c)). A “sitter” is defined as:
A person employed in a private residence solely to provide the service of attending to a child, or to a disabled, infirm or other person, but does not include a nurse, domestic, therapist, live-in home support worker or an employee of:
(a) a business that is engaged in providing that service, or
(b) a daycare facility.
Students Working in Schools
Students employed by a school board to work at the school where they are enrolled, and students enrolled at a secondary school in a work study, work experience, or occupational study class, are excluded from the entirety of the Act (Regulation, section 32(1)(a) and (b)).
In addition, a person participating in Youth Community Action while working for financial credit towards post-secondary tuition fees under that program is excluded from the application of the entirety of the Act (Regulation, section 32(1)(g)).
Persons Receiving Financial Assistance
The Act does not apply to the following individuals in receipt of financial assistance:
- a person receiving benefits under the Unemployment Insurance Act (Canada) as a result of working on a job creation project under section 25 of that Act (Regulation, s. 32(1)(f)),
- A person receiving:
- income assistance or benefits under the BC Benefits (Income Assistance) Act,
- a youth allowance or benefits under the BC Benefits (Youth Works) Act, or
- a disability allowance or benefits under the Disability Benefits Program Act,
while the person is participating in a time-limited government program that provides on-site training or work experience and is operated under an Act referred to in paragraph (i), (ii), or (iii) (Regulation, s. 32(3)).
The Act also does not apply to persons providing foster care in their place of residence (Regulation, s. 37.15) and certain ice hockey players (Regulation, s. 37.16).
Stay tuned for Part 2…