Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 10 - COMPLAINTS, INVESTIGATIONS AND DETERMINATIONS
ESA Section 80 – Limit on amount of wages required to be paid
This section sets out the maximum time for which an employer can be required to pay wages in a determination.
80. (1) The amount of wages an employer may be required by a determination to pay an employee is limited to the amount that became payable in the period beginning
(a) in the case of a complaint, 6 months before the earlier of the date of the complaint or the termination of the employment, and
(b) in any other case, 6 months before the director first told the employer of the investigation that resulted in the determination,
plus interest on those wages.
(1.1) Despite subsection (1) (a), for the purposes of a complaint that was delivered before May 30, 2002, to an office of the Employment Standards Branch under and in accordance with section 74, the amount of wages an employer may be required by a determination to pay an employee is limited to the amount that became payable in the period beginning 24 months before the earlier of
(a) the date of the complaint, and
(b) the termination of the employment,
plus interest on those wages.
(2) If a talent agency that has received wages from an employer on behalf of an employee has failed to pay those wages, less any fees allowed under the regulations, to the employee within the time required under the regulations, the amount the agency may be required by a determination to pay to the employee is limited to the amount calculated
(a) by deducting any fees allowed under the regulations from the amount received by the agency on behalf of the employee in the period beginning,
(i) in the case of a complaint, 6 months before the date of the complaint, and
(ii) in any other case, 6 months before the director first told the talent agency of the investigation that resulted in the determination, and
(b) by adding interest to the amount obtained under paragraph (a).
There are limits to the amount of unpaid wages that can be recovered through the Act.
Recovery of Wages – 6 Month Limitation
Wage recovery is generally limited to wages that became payable as follows:
- If employment has ended, wages that became payable in the last six months of employment;
- If employment is ongoing, wages that became payable in the six months before the date the complaint was filed;
- The director does not have to receive a complaint before starting an investigation. The director, under s.76(2), can start an investigation to ensure compliance with the Act and regulations. In this case, recovery is limited to wages that became payable beginning six months before the director first told the employer of the investigation which results in outstanding wages.
Where an employee continues to be employed after filing a complaint, the director will advise the employer that any contraventions are to be remedied going forward. At the end of the complaint resolution process, (or six months after the complaint is received if the complaint is not yet resolved), the director will commence a further investigation under s.76(2) of the Act to ensure that any contraventions identified as a result of the employee’s complaint have not continued after the date of that complaint.
More than one period of employment
If an employee leaves an employer and then goes back, each period of employment is separate for the purpose of wage recovery under the Act. Where an employee has two or more periods of employment, a complaint must be filed within six months after the end of each separate period of employment. The director can recover wages owed in the last six months of each period of employment.
Stan is employed from January 2 to February 5 and then quits. Stan then works for the same employer from June 1 to August 30. He files a complaint on August 31. Wage recovery from the employer is limited to the period of employment between June 1 and August 30. In order to recover wages from his first period of employment, Stan had to file a complaint within six months of the date his first period of employment ended, or by August 5.
Annual vacation pay recovery
Vacation pay earned in an employment year is payable to an employee the following year, within 12 months after the employee’s anniversary date, and seven days before the employee takes annual vacation.
If vacation pay is not paid, a complainant must file a complaint within six months after the date the vacation pay became payable.
Terri starts employment August 1, 2006.
Her first year of employment ends July 31, 2007.
The employer must allow Terry to take a vacation within 12 months after completing her year of employment. If Terry does not take her vacation and receive her vacation pay in the following 12 months, her vacation pay becomes due and owing on July 31, 2008. She has six months from that date to file a complaint.
Sukh sells cars on commission. When he takes two weeks’ vacation his employer is required, seven days before he goes, to pay him vacation pay of 4% of his total wages from the previous year. Instead of doing this, his employer tells him that any commissions that become payable to him when he is on vacation count as vacation pay. Sukh has six months from the date his vacation pay should have been paid to file a complaint.
Annual vacation pay recovery when paid on each payday
If an employee agrees in writing to be paid vacation pay on scheduled paydays, annual vacation pay for each pay period becomes payable in the same way as other wages for that pay period. If an employer stops paying vacation pay on every cheque, six months of vacation pay can be recovered with other wages.
Some employers pay vacation pay on every cheque without obtaining an agreement in writing from their employees as required by s. 58(2) of the Act. In these circumstances, outstanding vacation pay becomes payable in accordance with s. 58(1) of the Act as discussed above under “annual vacation pay recovery.”
- Interest begins to accrue on the date of termination or date of complaint, whichever is earlier; and
- Interest continues to accrue until the wages are paid.
Any complaint that was delivered before May 30, 2002, had a recovery period beginning 24 months before the date of the complaint instead of the six months set out in the current Act.
Where it has been determined that a talent agency has received wages from an employer on behalf of an employee and has failed to pay those wages to an actor, performer, extra or technical creative film person who is employed as a consequence of the efforts of the talent agency, these wages may be recovered from the talent agency in a determination.
The amount of fees allowed under the regulations will be deducted and the remaining wages recovered as follows:
- Where a complaint has been filed, wages earned within the six months before the date of the complaint;
- In any other case, wages earned within the six months before the director first told the talent agency of the investigation that resulted in a determination being issued.
Any amount determined to be owed is subject to interest in accordance with s.88 of the Act.
Related sections of the Act or Regulation
- s.25, Interest on money owing by employer
- s.27, Interest on money received by the director
- s.38.1, Compliance requirements – talent agencies
Employment Standards Tribunal Decisions
Orca Security Corporation, BC EST # D003/09
Danny Helgesen – and – Bhora Mayer, in his capacity as President, Gulf Coast Materials Ltd., BC EST # 077/09 reconsidered in Gulf Coast Materials Ltd. BC EST #123/09
Gulf Coast Materials Ltd. v. Helgesen, 2010 BCSC 1169