Several changes to the New Brunswick Employment Standards Act became effective on September 1, 2014. Three of these changes created new employee entitlements (and corresponding obligations on employers).
New protections for foreign workers
Employers who recruit, or who engage others to recruit workers who are not citizens or permanent residents of Canada are now required to register with the Director of Employment Standards on a yearly basis, and provide specific information regarding the employer, the foreign worker(s) and the nature of the position(s) to be filled by foreign workers.
Employers (or recruiters on their behalf) may not:
- require foreign workers to use immigration consultants as a condition of employment;
- recover the costs of recruiting foreign workers from foreign workers unless such recovery is allowed by the recruitment program;
- reduce wages or benefits or change the terms or conditions of employment after recruiting a foreign worker;
- misrepresent the position to be filled by a foreign worker, the duties of the position, the length of employment, wages, benefits or terms and conditions of employment, or supply false or misleading information about employer/employee rights/responsibilities;
- take possession of or retain a foreign worker’s property, including his/her passport or work permit;
- refuse to allow foreign workers to vacate employer-provided accommodations, if such accommodations are provided; or
- threaten foreign workers with deportation or any other action for which there is no lawful cause.
New unpaid leave provisions
The Employment Standards Act provides for several types of unpaid leave for employees, and as of September 1, 2014, it provides for two more leaves.
- Critical Illness Leave
An employee who is a parent of a critically ill child is entitled to a leave of absence without pay of up to 37 weeks to care for the child, provided a qualified medical practitioner has issued a certificate stating that the child is critically ill and requires the care or support of one or both parents for a designated period of time.
- Death or Disappearance Leave
An employee who is a parent of a child who has died or who has disappeared, and it is probable that such death or disappearance is the result of a crime, is entitled to a leave of absence without pay of up to 37 weeks. The employee is not entitled to such leave if he/she is charged with the crime.
In the case of both new leaves of absence, if both parents are employees of the same employer, the total combined leave of absence may not exceed 37 weeks.
Directors’ liability for unpaid wages and vacation pay
In cases where the Director of Employment Standards has ordered a for-profit corporate employer to pay an amount representing unpaid wages and/or vacation pay owing to an employee, a director or former director of the corporation is jointly and severally liable with the corporation to an employee or former employee for:
- up to 6 months’ unpaid wages that were earned or became payable while the person was a director; and
- up to 12 months’ unpaid vacation pay that accrued or became payable while the person was a director.
Note that a director of a for-profit corporation may escape liability if he/she exercised “reasonable diligence” to provide for the amounts owing, and further, such a director only becomes liable to pay if the ordered amount remains unpaid by the corporate employer for at least 30 days, and if at least 30 days’ notice of personal liability has been provided to the director.
Codification of practice regarding electronic pay stubs
Although this new provision does not create new employee rights or employer obligations, it clarifies the question surrounding the propriety of providing electronic pay stubs in place of paper copies. The provision reflects the way the Employment Standards Branch has treated this issue for some time, and states that an employer may provide electronic pay stubs to its employees as long as the employer also provides employees with confidential access to the electronic pay stubs at the place of employment.