Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS REGULATION - PART 7 - VARIANCES AND EXCLUSIONS
ESR Section 35 – Resident caretakers
This section excludes resident caretakers from the hours of work and overtime provisions of the Act, except for the requirement to schedule a minimum number of hours free from work each week and protection from excessive hours of work. There is also a requirement to display a resident caretaker’s schedule of working hours and days off. If an employer hires two or more resident caretakers, this section allows the employer to designate one or more of them to be the resident caretaker who is covered by section 17 and this section of the Regulation.
35. (1) Part 4 of the Act, other than sections 36 and 39, does not apply to a resident caretaker.
(2) Each employer of a resident caretaker must
(a) for the information of residents in the apartment building where the caretaker is employed, display in the building a schedule specifying the caretaker’s hours of work and days off work, and
(b) give the caretaker a copy of the schedule.
(3) If 2 or more persons, each meeting the definition of resident caretaker, live in the same apartment building and are each employed to do the work of a resident caretaker in that apartment building,
(a) the employer may designate, in writing, one or more of those employees as a resident caretaker, and
(b) on the making of the written designation, section 17 and this section apply to only the designated resident caretakers.
(4) An employer must, immediately after designating a person as a resident caretaker under subsection (3) (a), give a copy of that written designation to the resident caretaker.
A “resident caretaker” is defined in s.1 of this Regulation.
An employee who is a resident caretaker is entitled to the monthly minimum wage set out in section 17 of this Regulation unless there is more than one resident caretaker in a building and the employer has designated at least one of them to be the resident caretaker as set out in subsection (3) below.
A resident caretaker’s entitlement to the hours of work and overtime provisions in Part 4 of the Act are limited to:
- Section 36 Hours free from work
A resident caretaker is entitled to the 32-hour period free from work pursuant to s.36 of the Act. Should the employer not schedule time off, the Director will establish the 32-hour period in which the resident caretaker worked the fewest hours and require payment of 1 ½ times the regular wage for hours worked in that period.
- Section 39 No excessive hours
An employer must not require, or directly or indirectly allow, an employee to work excessive hours or hours detrimental to the employee's health or safety.
Resident caretakers are exempt from all other provisions in Part 4 of the Act.
The employer of a resident caretaker must display the caretaker’s scheduled hours of work and days off work so that residents of the apartment building where the caretaker works are aware of the schedule. The caretaker must also receive a copy of this schedule before the start of the schedule.
An employer must keep records of hours worked by a resident caretaker pursuant to s.28 of the Act, even though a resident caretaker is not entitled to overtime pay.
If an employer hires two or more resident caretakers to work in the same building, the employer can choose to designate which of them will be a resident caretaker. If a designation is made, section 17 and this section of the Regulation only apply to the designated employees. Other resident caretakers employed by the same employer in the same building who are not designated may be paid by the hour, and the hours of work and overtime provisions of Part 4 of the Act apply.
If an employer hires two or more resident caretakers to work in the same building and does not designate any of them to be the resident caretaker, all of them are resident caretakers and the provisions of section 17 and this section of the regulation apply.
If an employer designates a resident caretaker in writing under subsection 3(a) the employer must immediately give a copy of the written designation to the resident caretaker. If the employer fails to give a copy to the resident caretaker the designation has no effect and section 17 and this section of the Regulation apply to all resident caretakers employed by the employer. Employers are encouraged to obtain written confirmation that the designated resident caretaker acknowledges receiving a copy of the written designation.
- An employer hires Mr. and Mrs. Jones to be resident caretakers of an apartment building. The parties agree that Mr. Jones will be responsible for most resident caretaker duties but Mrs. Jones will assist with collecting the rent and with other matters if necessary. The employer designates Mr. Jones to be the resident caretaker and provides him with a copy of the written designation. The provisions of section 17 and this section of the Regulation apply to Mr. Jones. Mrs. Jones is paid by the hour and the provisions of Part 4 of the Act and the regular hourly minimum wage apply to her.
- An employer hires a resident caretaker to work during the week and a relief caretaker to work weekends and other times as required. The employer fails to designate either of them as the resident caretaker. The provisions of section 17 and this section of the Regulation apply to both of them.
- An employer hires two resident caretakers and tells one of them that he is designating her as the full-time resident caretaker. She does not know if there is a written designation and was not provided with a copy. The other resident caretaker files a complaint, alleging she was not paid for all hours worked. In the absence of a written designation, both of the resident caretakers are entitled to be paid in accordance with section 17 and this section of the Regulation.
Related sections of the Act or Regulation
- s.28, Payroll records
- s.36, Hours free from work
- s.39, No excessive hours
- Part 4. Hours of Work and Overtime
- s.1, Definition, “resident caretaker”
- s.17, Minimum wage - Resident Caretakers
- s.47, Complaints of contraventions of this regulation