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What state-specific laws govern the employment relationship?
The main British Columbia employment-related statute is the Employment Standards Act. Other important statutes for private employers include:
- the Apprenticeship Act;
- the Pension Benefits Standards Act;
- the Human Rights Code;
- the Labour Relations Code;
- the Workers Compensation Act; and
- the Personal Information Protection Act.
A number of other laws affect public sector and broader public sector employers in British Columbia.
For federally regulated employers, the main statute is the Canada Labour Code, although other federal legislation also governs the workplace (eg, the Canadian Human Rights Code and the Personal Information and Protection of Electronic Documents Act).
Who do these cover, including categories of worker?
Generally, the laws cover employees. However, because the laws governing the employment relationship are public welfare laws, the courts have held that the term 'employee' must be broadly and liberally interpreted. Therefore, depending on the circumstances, the definition of 'employee' may include independent contractors, consultants, interns, employees of affiliated employers or employees of temporary help agencies. Health and safety law has been interpreted to include self-employed individuals and independent contractors as workers.
Are there state-specific rules regarding employee/contractor misclassification?
Yes – the rules or approaches may differ between a variety of agencies (eg, tax and health and safety) depending on the purpose of the specific legislation. The recognised category of dependent contractors are also owed reasonable notice of contract termination.
Must an employment contract be in writing?
Contracts need not be in writing, but by law all employees must have a contract; in many cases contracts are part oral, part written (eg, offer letters or vacation policies) and part implied by common law (eg, the employee’s duty of loyalty and the employer’s duty to provide reasonable notice of termination, except for just cause). Nevertheless, ensuring that employees have a comprehensive written employment agreement is the most prudent course of action.
Are any terms implied into employment contracts?
Yes – the major implied terms are the employee’s duty of loyalty and the employer’s obligation to provide reasonable notice of termination, except for just cause.
Are mandatory arbitration agreements enforceable?
Yes – although arbitration clauses should be drafted carefully and in accordance with the British Columbia Arbitration Act in order to ensure that the objectives behind agreements are achieved.
How can employers make changes to existing employment agreements?
If a material change to an employment agreement is made without the employee’s consent, he or she may be able to resign and sue for constructive dismissal, or claim damages for breach of contract. Any agreed changes should be supported by an exchange of consideration. Changes can be made unilaterally, provided that notice under the contract or reasonable notice is given. Written agreements may also contain provisions which specifically address amendments.
What are the requirements relating to advertising open positions?
Job advertisements should comply with human rights legislation and generally should not contain statements, qualifications or references that directly or indirectly relate to protected grounds.
What can employers do with regard to background checks and inquiries?
(a) Criminal records and arrests
With consent, employers can perform background checks on employees’ criminal records. However, employers may be vulnerable to challenges if a candidate is denied a job because of a criminal record which is unrelated to the position for which he or she applied.
(b) Medical history
Generally, medical history should not be considered in the hiring process, except where there is a genuine occupational requirement. Pre-employment medical testing or medical history can be requested after a conditional offer of employment has been extended, if it can be shown that this information is relevant to the position.
(c) Drug screening
Drug and alcohol testing is a contentious issue in Canada as addiction is classed as a disability under human rights law and it has been held that drug testing does not determine whether an employee is impaired while at work. This has led to conflicting case law in Canada. The federal and Ontario approach is that, in general terms, testing is inherently discriminatory under human rights law, and is a significant intrusion on an employee’s privacy rights.
In British Columbia, pre-employment drug testing may be justified for safety-sensitive positions if the candidate is made aware of the testing and is subject to a strict testing regime. This is because the British Columbia courts and tribunals have found that health and safety can be paramount to human rights issues. However, if a candidate tests positive and subsequently proves to be a dependency, the employer may have a duty to accommodate him or her.
Further, when employees must work part of the time in the United States (eg, inter-provincial truckers) and drug screening is a requirement under US state law, that requirement may be found to support an employer’s position that drug testing is a genuine occupational requirement that should be permitted, notwithstanding general human rights and privacy concerns.
(d) Credit checks
The British Columbia privacy commissioner has ruled that employers are permitted to collect only personal information that is specific to the requirements of the position from prospective employees. Credit checks for employees as part of a routine background check process are not recommended.
Federally regulated employers are governed by the Personal Information Protection and Electronic Documents Act and are permitted to request credit checks only where it is reasonable to do so.
(e) Immigration status
Employers may require proof of legal ability to work in Canada as a condition of employment, but are prohibited under human rights legislation from inquiring into a prospective employee’s ancestry, citizenship or national or ethnic origin.
(f) Social media
Social media checks during the pre-hiring stage increase the risk of a discrimination complaint, as a candidate’s social media profile may disclose information concerning a protected ground under human rights legislation. Further, social media checks can violate privacy legislation due to a collection of non-work related personal information and the personal information of third parties.
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