Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 1 - INTRODUCTORY PROVISIONS

ESA Section 1 – Definitions – Employee


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section contains definitions for terms used throughout the Employment Standards Act and its Regulation.


Text of Legislation

"employee" includes

(a) a person, including a deceased person, receiving or entitled to wages for work performed for another,

(b) a person an employer allows, directly or indirectly, to perform work normally performed by an employee,

(c) a person being trained by an employer for the employer's business,

(d) a person on leave from an employer, and

(e) a person who has a right of recall;


Policy Interpretation

The Act applies to all employees under provincial jurisdiction regardless of status (casual, probationary, temporary) or hours worked (full time, part time). An employee is entitled to be paid wages in accordance with the Act for work performed, subject to the exemptions and exclusions in the Regulation.

See the Regulation for employees and occupations excluded from the Act or portions of the Act.

The Act does not have jurisdiction over a person who works as an independent contractor. See discussion on employee/independent contractor at the end of this section.

The Act does not apply to employees under federal jurisdiction. Refer to s.3 for information on how to determine what work falls under federal jurisdiction.

The definition of “employee” is very broad. It includes:

Subsection (a)

A person who works for another and is entitled to wages, regardless of whether they are employed on a part-time, full-time, temporary, or permanent basis. The director may also recover wages on behalf of a deceased employee.

Subsection (b)

Any person an employer allows, directly or indirectly, to perform work normally done by an employee is an employee under the Act. The employer is expected to have control and direction over the workplace including all persons performing work. A person may become an employee without the employer's permission or immediate knowledge.

Example

An employee wants some time off work, and with the employer’s knowledge arranges for a co-worker to cover the shift. That co-worker is entitled to be paid by the employer, even if the extra shift means the employer incurs extra liability for wages such as overtime.

Example

In a small restaurant, an employee, without the employer’s permission or knowledge, asks a friend to help wash dishes. The employer discovers the friend three hours later and asks him to leave. That person is an employee who is entitled to be paid wages for hours worked since he or she performed work normally performed by an employee.

Subsection (c)

Any training done at the request of the employer for the benefit of the employer or the employer's business is considered to be work done by an employee. Anyone performing such work is entitled to wages. This includes activities such as:

  • training for the employer's business that employees take prior to starting regular work, even if it conducted off the employer’s premises;
  • job shadowing or other training during work hours; and
  • trial periods for prospective employees.

Example

An employer requires an applicant to work a four hour shift to see if she can handle the work. The applicant is an employee who is entitled to be paid for work performed.

Activities performed to meet a pre-hiring condition of employment such as acquiring or maintaining certifications (for example, an air brake ticket, commercial driver’s licence or first aid certificate) are not considered training for the purposes of determining whether a person is an employee under the Act.

A person who performs an evaluation or test, such as a word processing test, given to prospective employees as part of an interview process, is not considered an employee and the test is not work.

A person who performs work for the employer’s benefit while being evaluated for a job must be paid, even if the work performed does not result in an offer of continuing employment.

Subsection (d)

The employment relationship continues during a temporary layoff or a leave under this Act. Examples of leaves include:

  • pregnancy and parental leave;
  • illness or injury leave;
  • family responsibility leave;
  • compassionate care leave;
  • bereavement leave;
  • reservists' leave;
  • jury duty.

An employee who is on a leave of absence is entitled to the provisions of the Act. A leave of absence does not affect entitlement to the minimum standards under the Act and length of service accrues as if the employee were present at the workplace.

Subsection (e)

A person who has recall rights under a collective agreement remains an employee until those rights expire or are terminated by the employee.

Employee or Independent Contractor?

The Act includes workers who may not be employees at common law. The Regulation excludes certain workers from coverage under the Act, some of whom may be employees at common law.

The definition of “employee” as discussed above, as well as the definitions of “employer” and “work” are intended to cover as many work relationships as possible. The Act is benefits conferring legislation. It must be construed in a broad, generous and purposive manner. Any doubt arising from how the definitions fit a particular fact situation is to be resolved in favor of the worker.

Section 4 of the Act prohibits employers and employees from contracting out of the Act. For this reason, a worker is not an independent contractor simply because he or she signed a written agreement to that effect. The definitions in the Act are central in determining the true nature of the relationship including whether the worker is an employee or independent contractor.

The overriding question is “whose business is it?” Is the person who is doing the work doing it as a person in business for themselves?

The courts have developed several common law tests to distinguish between employees and independent contractors. These tests are less important than the statutory definitions but can be useful to help identify some factors to consider.

Several factors that may be helpful to consider include:

  • the level of direction or control the person paying for the work exerts over the worker: for example, who defines what the job is and how and when it is done;
  • who has the chance of profit and risk of loss and who sets the rate the worker will be paid;
  • Whether the work performed is integral to the business;
  • Whether the worker has a number of clients, or works solely for the person paying for the work;
  • Whether the worker is hired to do a specific time-limited job as opposed to the parties being engaged in an ongoing relationship.

The longer a person works for another, the more closely the worker’s duties are connected to the purpose of the business and the more the person who pays the worker controls the material, directs the activities and earns the profit or suffers the loss, the more likely it is that the relationship is one of employer/employee.

Contracts

Contracts establish the terms and conditions of the relationship between the parties.

Where parties have entered into a written contract that the director finds to be an employment contract, the terms of the contract will be considered in the context of the requirements of the Act. The director can enforce contracts that provide for more than the minimum requirements of the Act.

Contracts may have conditions which contravene s.4 of the Act. Where a contract has certain provisions which purport to waive requirements of the Act, those sections will be considered of no effect and the minimum standards of the Act will be applied.


Related Information

Employment Standards Tribunal Decisions

North Delta Real Hot Yoga Ltd., BC EST #026/12

Mickey Transport Ltd., BC EST #012/10

Court Decisions

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. [2001] 2 S.C.R. 983 (S.C.C.), at paras. 47 and 48

Related sections of the Act or Regulation

ESA

ESR

Other references

See Employment Standards Factsheets

Factsheets

Employee or Independent Contractor?