Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS REGULATION - PART 7 - VARIANCES AND EXCLUSIONS

ESR Section 37.1 – Taxi drivers


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section explains an employer’s responsibilities when employing a taxi driver or leasing a taxi to a taxi driver. 


Text of Legislation

37.1.(1) If an employer leases a taxi to a taxi driver

(a) section 10 of the Act does not apply to a taxi driver driving the taxi, and

(b) the employer must pay a taxi driver any shortfall that arises if

(i) the taxi driver tracks hours under the lease arrangement on a per shift basis, and

(ii) the taxi driver does not recover in fares an amount which, in total, is greater than or equal to the lease payment for the taxi plus the minimum wage for each hour worked, averaged monthly.

(2) Sections 35, 40 and 42 of the Act do not apply to a person employed as a taxi driver.

(3) An employer who requires or allows a taxi driver to work more than 120 hours within 2 consecutive weeks must pay the employee for the hours in excess of 120 at least 1 ½ times the regular wage.

(4) An employer must pay a taxi driver any shortfall that arises if

(a) the taxi driver does not recover in fares an amount which, in total, is greater than or equal to the minimum wage for each hour worked, averaged monthly,

(b) the taxi is not leased by the employer to the taxi driver, and

(c) the taxi driver tracks hours under the employment arrangement on a daily basis.


Policy Interpretation

Under s. 1 of this Regulation a “taxi driver” is defined as "a person employed to drive a taxi". This regulation also refers to a situation where “an employer leases a taxi to a taxi driver.”

Determining the nature of the relationship

As this Regulation specifically includes taxi drivers who lease a taxi from an owner as well as taxi drivers who do not lease the taxi, taxi drivers who have entered into either of these types of arrangements may be covered by the Act and the Regulation.

When evaluating whether a taxi driver is covered by the Act and the Regulation, the definitions of “employee” and “employer” in s.1 of the Act must be considered as well as the purposes of the Act set out in s.2.

Some of the factors that may be considered when deciding whether a taxi driver is covered by the Act and the Regulation are:

  • Who owns the taxi;
  • What are the terms of any written lease agreement between the owner/operator or taxi company and the driver;
  • Who controls the taxi licence;
  • Does the driver operate the taxi as his/her own business;
  • Who controls the availability of work, decides how many taxis are out at any given time and sets the driver’s hours;
  • Is the driver required to drive the taxi during the hours it is assigned to him/her;
  • Is the driver permitted to hire or employ a replacement driver or sub-lease the taxi to others;
  • Does the driver always drive the same taxi;
  • Does the driver share in the profits of the taxi business;
  • Does the driver hold voting shares in the larger corporate entity;
  • Who is responsible for maintaining and cleaning the taxi  and paying for repairs;
  • Who pays GST;
  • Who pays WCB premiums, ICBC premiums and EI premiums;
  • Who has the chance of profit or bears the risk of loss;
  • Does the driver have to use the dispatch service or can he/she pick up fares any way they deem fit;
  • Is the driver subject to discipline or dismissal by the taxi owner or business;
  • Can the driver use the taxi for personal use when not at work.

Identifying the Employer

The Director may associate an owner/operator with a dispatch company pursuant to section 95 if the business is deemed to be operating through both and neither could operate without the other.

Defining the vehicle as a “taxi”

  • The definition of “taxi driver” in section 1 of this Regulation does not include “limousine driver”. A limousine driver is not considered to be a taxi driver for purposes of the Act. Similarly, a limousine is not considered to be a taxi for purposes of the Act.
  • A taxi is not a bus. A bus has a set fare and travels a defined route according to a set schedule. A taxi has no such restriction. An "Airporter" service between downtown hotels and an airport is a bus service, not a taxi service.

Subsection (1)(a)

Section 10 of the Act does not apply to taxi drivers.

Subsection (1)(b)

When a taxi driver leases a taxi and records the hours they work on a per shift basis, the taxi driver must be paid an amount that is at least equal to:

  • the amount of the lease payment; plus
  • minimum wage for each hour worked averaged on a monthly basis.

This amount can be in the form of fares retained. However, if the amount of money earned by the taxi driver is not equal to or more than the above amount, the employer must pay the difference.  Section 16(2) of the Employment Standards Act prohibits an employer from withholding or deducting all or part of an employee’s wages from a subsequent pay period to cover any shortfall.

Subsection (2)

As set out in subsection (3) below, this Regulation sets out specific overtime rules for taxi drivers so the following overtime provisions in the Act do not apply:

  • Section 35 Maximum hours of work before overtime applies
  • Section 40 Overtime wages for employees not working under an averaging agreement
  • Section 42 Banking of overtime wages

Subsection (3)

A taxi driver who works more than 120 hours within two consecutive weeks is entitled to be paid 1½ times his or her regular wage for all hours worked in excess of the 120 hours. A week begins on Sunday, as set out in the definition of “week” in section 1 of the Act.

Subsection (4)

If a taxi driver does not lease a taxi, and tracks hours on a daily basis under an employment arrangement, the employer must make sure the taxi driver earns at least minimum wage for all hours worked, averaged on a monthly basis. If the fares fall short of minimum wage, the employer must make up the shortfall.

Section 16(2) of the Employment Standards Act prohibits an employer from withholding or deducting all or part of an employee’s wages from a subsequent pay period to cover any shortfall.

Other considerations with respect to  taxi drivers

  • What is work?

    A taxi driver is deemed to be at work when he or she is available for dispatch, and is seeking to obtain a fare.

    Examples
  • When does “on call” mean the taxi driver doesn’t have to be paid?

    A taxi driver cruising around town looking for a "flag" is considered to be at work, as is a taxi driver waiting in a queue at a cab stand, an airport, a bus station, a theatre, or any other place where it is reasonable to wait for a fare.

A taxi driver "on-call" at his or her private residence is not deemed to be at work. A taxi driver who, during his or her shift, has left the taxi to attend to personal matters or take a meal break is not considered to be at work.

Minimum Wage

A taxi driver must be paid at least minimum wage for all hours worked, averaged monthly. If the driver is a lease operator, minimum wage is calculated after the driver has recovered the amount of the lease payment.

Paydays

Taxi drivers may have their wage entitlement reconciled on a monthly basis. Any top-up to minimum wage, to make up for a shortfall in commissions earned (fares retained) is done over the period of a calendar month. The employer calculates the difference between wages earned in a month, and minimum wage for all hours worked. It should be noted that a taxi driver is entitled to the minimum daily pay provisions under section 34 of the Act.

Although the earnings reconciliation is done on a monthly basis, taxi drivers are entitled to be paid at least semi-monthly in accordance with s.17 of the Act. It is permissible to provide a mid-month advance; however, the amount of the advance should be at least equal to the number of hours worked at minimum wage. The amount of the advance does not have to take into account the amount of any lease payment made as long as the reconciliation of earnings against expenses is done each month.

Payroll Records

The employer is required to gather the payroll records information required under s.28 and to keep it for a period of 2 years after employment terminates. While it is possible for the employer to rely on employees to provide the information, their failure to do so does not relieve the employer of the record-keeping requirements. For instance, the employer may ask employees to record meal breaks taken, and to inform the employer of those occasions when they are not taken. If employees fail to do so, their failure does not excuse the employer from the requirement to keep records.

Meal Breaks

It is possible for meal breaks to be combined so as to allow for an hour off work in a shift of up to 11 hours. In such instances, the employee may work five hours, then take a half-hour break, then take another half-hour break, then work five hours.


Related Information

Court Decisions

Castlegar Taxi (1988) Ltd., [1991] B.C.J. No. 2712

Employment Standards Tribunal Decisions

Victoria Taxi (1997) Ltd., BC EST#D601/97

Sunshine Cabs Limited, BC EST #D012/04

Trendtham Group Enterprises Inc. c.o.b. as Star Taxi, BC EST #032/08


Related sections of the Act or Regulation

ESA

ESR