Investigations
Starting February 1, 2023, employer violation information will be published online in accordance with section 101 of the Employment Standards Act, and section 62 of the Temporary Foreign Worker Protection Act.
The Employment Standards Branch promotes and upholds the Employment Standards Act. The Act protects employees and sets the minimum requirements for employers. Our vision is to respond to complaints in an accessible, efficient, fair and consistent way that ensures people understand their rights and comply with their responsibilities. We achieve this goal in part by providing education and fostering communication with and between the parties throughout the investigation process.
Not every work issue or type of work is related to B.C. employment standards. See if the standards apply to you.
On this page:
- What is an investigation?
- What is the role of the investigator?
- Investigation overview
- Investigation outcomes
- What’s your role?
- Provide the information required or sought
- Investigation process and the opportunity to respond
- Investigations without a complaint
- What you can do
What is an investigation?
An investigation is the process in which a delegate of the Director of Employment Standards, referred to as the investigator, seeks to understand the issues presented in a complaint and reach an outcome. Throughout this process, the investigator will provide education on the application of the Act and provide both parties with reasonable opportunities to provide information about the issues. An investigation can end in a voluntary resolution between the parties or a formal decision, called a determination, can be issued. A determination sets out whether the Act has been contravened, and if so, what wages may be owed.
Investigations are conducted to determine if the law has been followed and to reach an efficient, fair and effective outcome for both parties. The most common allegation which we investigate is that an employer has not paid all of the wages they were required to. Employment Standards also conducts other types of investigations such as to ensure licensed individuals and businesses are in compliance with the Act.
In some cases, Employment Standards may be required to collect wages from an employer as part of an investigation. Find out more about the collections of wages, enforcement and penalties.
What is the role of the investigator?
The investigator is a neutral third party who works to bring about an efficient and effective conclusion to the investigation while being impartial and unbiased. This means that they do not advocate for the employer or the employee when investigating a complaint. They view the issues objectively. Investigators balance the need for neutrality with fairness and compliance. Where the parties may be unfamiliar with the Act or the process, investigators can take steps to provide additional information to promote understanding of rights and obligations and meet the Director’s statutory obligation to ensure compliance with the Act.
Some of the responsibilities of an investigator include:
- Understanding the complaint and identifying issues covered by the Act
- Educating the parties on the application of the Act and helping them understand whether they may be entitled to, or owe, wages
- Helping the parties reach a fair and effective voluntary resolution
- Providing a reasonable opportunity for both parties to provide information
- Seeking out information that is required to investigate the issues
- Sharing information with the parties to ensure each party understands what information is available to the investigator
While the investigator will provide education, investigate the issues and help employees and employers resolve the complaint, the investigator is ultimately tasked with gathering the information required to conclude a complaint. The investigator may not be able to do this in a timely manner if one or both parties do not participate. The quality of any investigation and the time required to investigate a complaint is directly affected by how employees and employers participate in the process. An investigation proceeds efficiently when both parties engage in the process.
Investigation overview
Before starting an investigation, we will confirm that the Employment Standards Branch has jurisdiction over the complaint and that there is an issue under the Act to investigate.
Once an issue has been identified, the investigator will work with the employee and employer to clarify the issue and understand their positions. Some complaints involve a monetary issue while others do not. If the complaint contains a monetary issue the investigator will seek to understand if the parties agree or disagree that wages are owed and what their position is based on.
Early in the investigation the investigator will provide education on the application of the Act to the parties. Education typically includes explaining what the Act requires and how it may apply to the to the information provided by the parties to help the parties understand what they may be entitled to or owe under the Act. By receiving education on the application of the Act, parties are better equipped to decide how to proceed.
If a complaint cannot be resolved through early education, the investigation will move to a more formal review of records. Parties are encouraged to continue to provide relevant records and details about the complaint. The investigator’s role is to determine what information and records may be relevant to the complaint issues and make reasonable, but not unlimited, efforts to obtain that information. If necessary, a complete review of evidence and documentation, including payroll documents and timesheets, will be completed. Both parties should be ready to provide information and documents which are relevant to the complaint, or which have been requested by the investigator.
An investigation may involve the examination of evidence provided by the parties. This includes, but is not limited to:
- Payroll records, including wage statements
- Timesheets or records of hours worked
- Employment agreements
- Communications between the parties regarding the complaint issues
- Proof of payment of wages, including banking statements
Both employees and employers must provide documents within strict timelines when asked. If the requested information isn't provided in time, a delegate may proceed with the investigation or make a decision without the information.
During an investigation, the investigator may also:
- Review allegations from a complaint
- Make a request for more information
- Review related documents
- Talk with other people who may have information about the issues, such as an employee’s direct supervisor or someone who was present when an event took place
- Gather additional evidence needed to resolve the complaint
Not all investigations take the same amount of time to complete. The time it takes to complete an investigation may vary based on:
- The complexity and number of issues
- The extent to which the parties participate
- How timely participation by the parties is
- The availability and volume of relevant documents
- The number of people or entities involved
Once the investigator has gathered enough information to clarify and understand the issues, the investigator may attempt the resolve the complaint. Investigations can be typically concluded in one of two ways. In some cases, the parties will reach a voluntary resolution. In other cases, the Employment Standards Branch will write a decision that sets out whether the employee is entitled to wages under the Act.
An Employment Standards investigator may conduct their investigation by telephone or written correspondence. The Branch does not conduct oral hearings. Both parties will have a reasonable opportunity to provide information and present their side of the story.
Investigation outcomes
Most complaints received by the Branch are voluntarily resolved by the parties with the assistance of an investigator. Many employees and employers want to resolve their dispute in a timely, fair, respectful and voluntary manner. Investigators help the parties reach a resolution early in the investigation process by helping the parties understand the issues and the law. They will help interpret how the Act may or may not apply to the complaint. The education and investigation process provides the parties with a reasonable opportunity to understand if wages may be owed and how they may be calculated. It also provides an opportunity for a voluntary resolution of some or all of the complaint issues.
Voluntary resolution can lead to a timely outcome that meets the parties’ needs without an extensive process or an imposed legal decision from the Branch. This type of resolution is almost always faster than if a formal determination is issued. At any time during an investigation, before it is finalized, an employer and employee can reach an agreement resolving all or some aspects of a complaint. The investigator can provide a settlement agreement to bind the parties to an agreed resolution of the complaint if necessary.
The benefits of voluntary resolution include:
- Parties can resolve the issue quickly
- Employees may receive wages sooner
- The outcome is driven by the parties
- The parties are empowered to come to their own fair and reasonable agreement
- Bringing finality to the dispute without further appeal proceedings
- Creating a resolution which meets all or most of the needs of both parties
- Employees and employers may save effort and time by not needing to provide records and information in response to formal demands
A complainant may also withdraw their complaint at any time if the issue which caused the complaint has been resolved.
If the parties do not come to a voluntary resolution in a timely manner, the investigation process will continue to a formal decision called a determination.
A determination is a decision that is issued by a delegate of the Director of Employment Standards about whether the employer has followed employment standards. It is a formal legal decision that discusses the merits of a complaint and can be used to collect wages from an employer.
Determinations are issued when:
- The parties can't reach a fair and timely resolution after education about the issues and the Act
- Voluntary resolution isn't appropriate
Determinations are most often issued when the parties cannot agree on whether or how the Act applies. This could include a disagreement as to what wages may be owed. If a party fails to participate, as and when required, a determination may also be needed to formally conclude the complaint dispute process.
A determination may be issued against an employer who hasn't followed the Act. Typically, a determination will include findings as to whether the Act was contravened and if wages are owed.
The determination will include administrative penalties if the delegate finds there are contraventions of the Act. Administrative penalties must be applied when a contravention of the Act is found. Penalties start at $500 per contravention and can increase if there are more contraventions within 3 years (up to a maximum of $10,000 per contravention). Employment Standards may also publish information about employers who have contravened the Act.
Not all outcomes include the payment of wages. For example, determinations may be issued finding the Act doesn’t apply to the complaint, that no wages are owed under the Act, or that there is insufficient evidence to prove the complaint.
Once a determination is issued, it can be appealed to the Employment Standards Tribunal.
What’s your role?
The quality of any investigation and the time required to investigate a complaint is directly tied to how employees and employers participate in the process. An investigation proceeds efficiently when both parties engage in the process. This may include taking part in interviews with the investigator and responding to requests for information and records.
To support a timely investigation, your participation should be both meaningful and timely.
Meaningful participation means providing information and documents which are relevant to the complaint issues. The investigator may help the parties identify what is relevant to the issues. It also includes responding to the information provided by the other party. Either party may have the only evidence or the best evidence available on certain issues and they will be asked to provide it.
Timely participation means responding to the investigator as quickly as possible and within deadlines provided. Whether you are responding to a request for information or documents or answering a question, your timely response ensures that the investigation proceeds efficiently.
If one or both parties do not participate in the process, the investigation may continue and a decision may be issued based on the available information. Once the investigation is complete, you may not be able to provide further information or refute the other party’s evidence, even if the information is relevant to the complaint.
Non-participation hinders voluntary compliance and timely resolution.
If one or both parties do not meaningfully participate, it is difficult to reach a voluntary resolution. Some complaints are best resolved when there is an active dialogue between both parties and the investigator. In these cases, if one party does not participate, the process can be hindered.
Non-participation also delays effective outcomes.
Regardless of whether a complaint is voluntarily resolved or requires a written decision, a lack of participation from one or both parties may delay the outcome of an investigation. For example, throughout an investigation, parties may be given a deadline to provide a response or more information. If both parties respond in a timely manner, the investigation can proceed almost immediately. If one or both of the parties does not provide a timely response, the investigation may proceed at a slower pace.
If you don't provide the information that the investigator asks for, they may move ahead with the investigation and a decision may be made without your information. This could mean that one party loses as a result of not participating.
Provide the information required or sought
Often the most helpful information you can provide includes copies of the following documents:
- Wage statements (pay stubs): These can help show us what you were paid, how often you were paid, the breakdown of your wages, any deductions, your vacation accrual, and your rate of pay
- Employment agreements or contracts: These can help show us what you agreed to when you started working for your employer
- Work schedules or timesheets help to support your daily hours of work, which is critical to such issues as regular wages, overtime wages and statutory holiday pay
- Written communication between you and the employer such as text messages about hours of work or emails confirming your rate of pay or last day of work
- Calculations or other relevant documents
- Your most recent T4 statement or Record of Employment
We also need you to keep your contact information up to date. If you move or change your contact information, tell the investigator as soon as possible. If we can't reach you during the process, your file may be closed because without an employee’s active participation, there may be insufficient information to continue an investigation or make a decision.
The investigator will contact you to gather more information and confirm the information provided by the employee. The investigator may also request certain records that you're required to keep under the Act. You must respond to demands issued by Employment Standards to provide records. Failure to do so may result in administrative penalties.
Some examples of the records you may be required to keep and provide upon request include:
- Wage statements
- Record of hours worked
- Employee wage rates
- The dates an employee’s employment started and ended
- Employment contracts or agreements
- Documentation of any discipline, warnings and/or termination
Investigation process and opportunity to respond
The investigator guides and controls the investigation process to help the parties move through an investigation in a timely and effective manner. A decision to resolve a complaint by way of investigation does not give rise to a breach of natural justice. Investigations are a fluid process, during which the investigator may move at any time between education, resolution discussions, information gathering and preparing the complaint for a formal decision.
The Act does not require or mandate an oral hearing and investigators are given broad discretion over the conduct of an investigation. The Act does, however, require that reasonable efforts be made to give a person a reasonable opportunity to respond.
The Act does not create a discovery obligation nor does the Branch need to disclose all of the information it receives during an investigation, especially if the information is not relevant to the complaint issues. An investigation under the Act does not give the parties the same rights which arise in a purely judicial setting within, for example, the BC Supreme Court.
An investigation is an information-gathering process led by the investigator in which all parties are given a reasonable opportunity to provide information, support their position and respond to information provided by the other party. Parties are given a reasonable opportunity to respond, which means they are given an opportunity to know the case against them, the right to present their evidence or information and the right to be heard by an independent decision-maker. It is the investigator’s role to identify the issues under the Act, determine what is relevant to the issue and gather additional records and evidence as needed.
The investigator has discretion over how the investigation is conducted. They will make reasonable efforts to contact both parties to provide education on the application of the Act, gather information and discuss each party's position on the issues. As an investigation progresses, the investigator will make reasonable efforts to hear both parties’ side of the story and provide them with reasonable opportunities to understand, question or challenge the other parties’ evidence.
The investigator has the discretion to determine when each party has had an opportunity to respond. This ensures that there is not a never-ending cycle of opportunities given to the parties. It is not by itself a breach of natural justice rights for an investigator to determine that a reasonable opportunity to respond has been given in order to progress the investigation.
Related Employment Standards Tribunal decisions
Review decisions related to the investigation process and opportunity to respond.
Section 77 of the Act is a statutory procedural fairness requirement based on the common law duty to comply with principles of natural justice. Principles of natural justice are simply procedural rights ensuring that parties have an opportunity to know the case against them, the right to present their evidence, and the right to be heard by an independent decision maker. The Director has discretion to decide the resolution method.
Read the decision: BC EST #RD054/06 - Inshalla Contracting Ltd.
Section 77 does not impose a requirement on the Director to disclose all documents and information received to the other parties involved in the complaint.
Read the decision: BC EST #D031/09 - Diana Robertson
A party is not necessarily entitled to the entirety of the evidence that may have been presented to the Director in an investigation. A person under investigation must have enough information to permit an informed response but is not entitled to every piece of information received by the Director.
Read the decision: BC EST #D132/09 - Emergency Health Services Commission carrying on business as B.C. Ambulance Service
There is no specific legislative requirement that the Director disclose all information received by the Director to all parties involved. The ESA does not create a discovery obligation.
Read the decision: 2022 BCEST 23 Dayton Boots and Eric Hutchingame
An investigation under the Act does not give right necessarily to the same natural justice rights which arise in a purely judicial context.
Read the decision: BC EST #D036/17 Thomas Roy, carrying on business as Cascadia Biological Services
An investigation is a dynamic process which involves collecting information from different persons in different circumstances at different times and by its nature is different from a quasi-judicial hearing.
The ESA does not require a hearing and the Director’s decisions are made in a dynamic and fluid environment intended to ensure basic working standards and conditions, fair treatment of employees and employers and fair and efficient procedures.
Read the decision: 2022 BCEST 20 Little Jumbo Restaurant Corp.
One party receiving an additional opportunity to respond does not breach natural justice requirements.
Read the decision: 2022 BCEST 6 Harkamalrajresources Ltd.
Investigations without a complaint
The Director of Employment Standards has broad discretion over when an investigation is initiated without a complaint.
We promote accountability for, and compliance with, employment standards through:
- Audits and investigations
- Robust licensing, permitting and a registration system
Investigations of this type may be conducted when the Employment Standards Branch has evidence of widespread non-compliance or to ensure a licensed business or individual complies with the Act.
The Employment Standards Branch conducts investigations into licensed businesses such as talent agencies, employment agencies and farm labour contractors. The Branch also operates a proactive agricultural compliance team. Investigations into these businesses are carried out to ensure compliance with the Act.
As these investigations are Director-initiated, the investigator controls the process and exercises the discretion granted to the Director to open and close such an investigation.
Investigations related to unpaid wages may result in education, interviews, and/or a review of payroll records. The Employment Standards Branch may:
- Audit the records directly
- Require an employer to conduct a self-audit and require that the employer report back to Employment Standards, paying any wages found owing to employees
- Review an audit completed by a third party hired by the employer
- Order an employer to pay a security to the Branch to ensure future compliance with the Act
If wages are owing and full voluntary payment isn't made, Employment Standards may make a determination. The determination will order the employer to pay wages, interest and penalties.
Published employer violations
On February 1st, 2023, the Director will begin publishing limited information related to violations for all determinations issued on or after this date.
In accordance with section 101 of the Employment Standards Act, and section 62 of the Temporary Foreign Worker Protection Act, the Director may publish information relating to contraventions of the Act or Regulation including the identity of persons named in a Determination.
What you can do
If you're having issues at work, find out what you can do:
Employment Standards Act
