Are Your Employees Covered by the Employment Standards Act?

When preparing employment agreements or considering applicable rules for topics like overtime pay, vacation pay, or termination pay, the first question is to determine if the workplace or the employees are protected by the Employment Standards Act in BC.  This generally involves two different inquiries. 

First, one must consider whether the business is federally regulated and therefore governed by the Canada Labour Code.  Federally regulated workplaces generally include:

• inter-provincial and international services such as: railways, road transport, telephone systems, pipelines, and shipping;  
• radio and television broadcasting;
• air transport;
• banks; and
• some First Nations communities and activities.

See here for more information regarding federally regulated activities. 

If the workplace is not federally regulated, it will be provincially regulated and generally subject to the protections of the Employment Standards Act.  This is not the end of the inquiry though. The second step is to determine whether some of your employees will be exempted from some of the provisions of the Act.  The Act has various exemptions built into it which will mean that while the workplace is subject to the Employment Standards Act, certain of the employees are exempted from provisions of the Act.

For example:

• Some professions and occupations are completely excluded from the protections in the Act including: architects, accountants (including their students), lawyers (including articling students), chiropractors, dentists, engineers (including their students/trainees), insurance adjusters, land surveyors (including their students/trainees), physicians, naturopaths, optometrists, podiatrists, realtors, veterinarians, and foresters. 

• Some employees are specifically excluded from the overtime, meal break, and statutory holiday provisions but not the minimum wage protections (e.g. nurses in training, an auxiliary firefighter).

• Some employees are specifically excluded from just the overtime and meal break provisions (e.g. teachers, professors, police officers, and firefighters). 

• Some employees are specifically excluded from other specific provisions of the Act, such as farm workers, resident caretakers, fishers, managers, taxi drivers, container truckers, newspaper carriers, oil and gas field workers, loggers, high technology professionals, commission salespeople, and junior hockey players.  

There are specific provisions and criteria for some of the exclusions or exemptions noted above.  Each one needs to be reviewed carefully to consider its application to the particular circumstances for a workplace or employee. 

This update was co-authored by Scott Marcinkow. Looking for more information regarding similar issues? Contact Scott at [email protected] or anyone else listed on the authors page.