Over the last couple of months (start of 2022), we have been assisting our clients with an increased number of audits and investigations done by the BC Employment Standards Branch. Some of the audits started off as a single Employment Standards complaint but then turned into an audit of the company's entire workforce for general compliance with Employment Standards Act. This comes after the article we prepared last year on Important Changes to BC Employment Standards Act, which you can read here. As part of recent amendments to the Act, the Director's powers to investigate compliance with the Act "at any time or for any reason" were increased at that time, and it seems have been put into force following the amendments.

In conducting these audits, the delegates of the Director have the power to compel any record from the employer, speak to witnesses including other employees, and even physically attend the workplace to inspect records and investigate.

Some of the main focus of the audits are in the following areas:

• Overtime pay (especially around workplaces with informal agreements around hours and banked time and salaried employees),
• Vacation pay, and
• Statutory holiday pay.

Investigations related to unpaid wages include a review of payroll records. The Employment Standards Branch will:

• Audit the records directly
• Require an employer to conduct a self-audit and review it, or
• Review an audit completed by a third party hired by the employer

For further insights on the topic of salaried employees and overtime, we highly recommend taking a look at our article prepared by Jesse Dunning explaining Overtime and the Salaried Employee under the Employment Standards Act. Overtime for salaried employees can be an area of confusion for employers and workers in BC. Many assume that because an employment contract sets out a fixed salary for the year, the employer is not required to pay the employee for overtime worked. This assumption is incorrect, and can lead to significant problems in the employment relationship, as well as during an Employment Standards investigation.

Enforcement Through Employment Standards Investigations

Once the investigation is complete, if wages are owing, the Employment Standards Branch may make a written decision called a determination, if full voluntary payment is not made. If an employer has not followed B.C. employment standards, they will be ordered to pay wages owed along with interest and penalties.

The scariest thing is that if the breach is company-wide (or department-wide), during an investigation the Employment Standards Branch can order compensation be paid for entire affected workforce even if only one person complained and nobody else has issues. The Branch can go back 1 year by default, but up to 24 months in special circumstances.

If you are contacted by the Employment Standards Branch regarding an investigation, it is important that you obtain legal advice from experienced employment lawyers right away. Our Group has been successful in assisting clients reach settlements to reduce the financial impact of these audits, and are here to help.

In addition, as always, we recommend being proactive about protecting your business. If you are an employer concerned that you have salaried employees (or dependent contractors) who have been working significant amounts of unpaid overtime, it is important that you speak with a qualified employment lawyer regarding your situation. At this time, we are offering Audit Prevention services, including a review of your existing Employment Contracts, Workplace Policies and practices, with a focus on identifying any potential breaches or weak points, and working with you on remediation and ensuring compliance with the Act, before an investigation comes your way.

If you are interested or would like to find out more, please submit a Contact form or email Chris Drinovz.

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As of February 1, 2022, Kane Shannon Weiler LLP is rebranding. As part of our rebranding strategy, our business name has changed from Kane Shannon Weiler LLP to KSW Lawyers. This name change is part of our strategy targeted to providing high-quality, comprehensive legal services to all our communities.‍‍

Why Rebrand Our Firm

Kane Shannon Weiler LLP was founded in 1973 and primarily served clients in Surrey and the surrounding areas involving in matters of business law and real estate. Since that time, our firm has grown in size and scope to be in a position to represent individual and corporate clients across a wide variety of practice areas. Over the last few years, we have become one of the largest law firms South of the Fraser River, with recognized leading lawyers in multiple specialized practice areas.

Our partnership discussed how we can continue to nurture our evolving clientele. We know we have experienced and knowledgeable lawyers and support staff that have been providing and will continue to provide quality services to our clients. But we also want to effectively communicate that to our current and future clients. What a better way to do that then with a new brand and a new mission and vision statement to support what our new logo represents.

KSW Lawyers’ Vision and Mission are based on our three founding principles:

·       Dedication to quality

·       Commitment to community

·       Passion for serving others

Our Vision

KSW Lawyers’ vision is to provide a holistic, client-focused approach to law, that serves and supports our community.
To do this, we have been developing our existing practice areas into thriving departments by leveraging processes, education, and technology at the firm.

Our Mission‍

As a full-service law firm, our mission is to provide high-quality, comprehensive legal services to our community.

To achieve this, we have been growing our firm strategically, creating new, specialized departments in various practice areas to expand our capabilities and services.

What does this mean for our current clients?

Our clients can expect nothing less than the experienced legal services you’ve come to appreciate; you may just see a more modern look, more legal services and streamlined, easy to use technologies offered in the future. Our dedication and energetic working relationships with you will continue while we work on adding more services that are beneficial to our communities.

Some changes you will easily notice in the coming months will be our new website, email addresses, social media profiles, new logo and brand signatures.

Our New Logo

The new KSW Lawyers logo features 3 primary icons. These illustrations are representative of the following values:

‍Personal Law

Figures representing  community, our personable values, and personal legal services for individuals.

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Litigation

Geometric figures forming  Lady Justice: the allegorical scale within judicial systems. Representative  of the comprehensive litigation services KSW Lawyers offers to help you  resolve your disputes.

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Business Law

A staircase,  representing our ability to help our business clients achieve growth and  progress, by overcoming obstacles with our advice and support.

Thank you

We’d like to take some time and thank our loyal clients for your many years of support. We are grateful to be able to serve so many different communities in the FraserValley and look forward to growing alongside you in the future.

Sincerely,

Partners of KSW Lawyers

Peter Unruh, Peter McCrank, Kevin Scott, Peter Hamilton, Tony Urquhart,
Chris Drinovz & Travis Brine

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Strata Corporations and Collection of Vaccination Status Information

The implementation of Vaccine Cards and proof of vaccination requirements to access certain events, services, and businesses in BC has raised questions for those living in strata properties. 

Many privacy-concerned residents are wondering whether their strata corporation has the authority to require them to provide proof of vaccination in order to use common facilities such as gyms, pools, and social rooms, and if so, how their privacy will be protected.

Without clear direction from the BC government, this can be a difficult topic for volunteer-run strata councils to navigate. 

A strata corporation may be able to impose vaccination requirements for common use facilities by passing a bylaw at a special general meeting or an annual general meeting at which the proposed bylaw receives a 3/4 majority vote. Strata corporations may also be able to implement a rule without the necessary requirements for passing a bylaw. 

Section 125 of the Strata Property Act, SBC 1998, c 43 allows strata corporations to make rules governing the “use, safety and condition of the common property and common assets”.  

If a strata corporation does decide to implement vaccination requirements, it means that the strata corporation will be collecting personal information of residents and is required to comply with BC’s privacy laws. 

Strata corporations are governed by the Personal Information Protection Act, SBC 2003, c 63 (“PIPA”). PIPA describes how corporations must handle personal information that they are collecting, using, and disclosing and allows for collection, use, and disclosure for reasonable purposes. Reasonable is defined by the context in which the information is collected and will vary in different situations. It is important that strata corporations clearly and specifically identify the reason that they are collecting personal information. 

Generally, PIPA requires that strata corporations: get consent from residents to collect information; have a reasonable purpose for collecting, using, and disclosing information; inform residents of that purpose; have adequate security in place to protect information; appoint someone to be accountable for PIPA compliance; and destroy information when it is no longer needed for its purpose. 

In the context of requiring proof of vaccination, strata corporations ought to be cautious about over-collection, disclosure and storage of information, and retention. The least amount of information collected to achieve the purpose is the best practice. For example, rather than collecting a copy of a resident’s proof of vaccination, a better option is keeping a list of resident’s names and placing a checkmark beside the names of residents who have shown their vaccination status to the strata member designated to ensure PIPA compliance. 

It will be important for strata corporations to consider who will have access to the collected vaccination information and limit the number of people to as few as possible to carry out the stated purpose. 

Storage of information is another key consideration. Strata corporations should consider where the information will be stored so it is protected from risks such as someone who is not supposed to see the information being able to see it, someone changing the information, or someone stealing or losing the information. Storing information in a locked filing cabinet that only designated people have access to is a good safeguard. 

Finally, strata corporations ought to consider how long they will need to retain the information and how they will dispose of it once it is no longer required for the purpose it was collected for. Strata corporations will have to grapple with when proof of vaccination will no longer be required. Once that day comes, the information collected must be destroyed or securely disposed of, for example, by shredding any documentation retained in the collection process. 

If you have any questions or need assistance in ensuring you are PIPA compliant, please reach out to Tiana Reid at [email protected]

A recent BC Supreme Court decision rendered that potential errors in termination letters could lead to having cost consequences to the employer. It also went over the consideration requirements needed when amending or introducing contracts for existing employees.

In Moffatt v. Prospera Credit Union, 2021 BCSC 2463, an employee of 22 months’ service who occupied no managerial role was terminated of her employment. In the termination meeting, the employee was presented with a termination letter and a proposed Release, which reduced her entitlements but increased her obligations, both to the significant detriment of the dismissed employee and benefit of the employer, had the employee signed it. The termination read in part:

Pursuant to your employment contract with Prospera…and in accordance with the BC Employment Standards Act, Prospera will pay you a lump sum of $1,374.28…which is equivalent to 2 weeks of your pay as termination pay. Prospera will also pay you a gratuitous lump sum payment of $206.14, less required deductions, which is equivalent to 15% of your termination pay in lieu of benefits.

The letter also advised the employee, “[y]ou are required to sign this letter and the full and general release (“Release”) attached to this letter…”. The termination letter further stipulated that “under your employment contract with Prospera you must not for 12 months following the end or your employment, solicit Prospera’s clients, employees and contractors.”

At the meeting, the employee was visibly upset and cried profusely. No opportunity to calm down was provided but she was required to collect her things and leave immediately. She was then escorted across the branch where the meeting occurred, in full view of other employees and members of the public, while crying and attempting to shield her face with the termination letter.

Consideration

The employee in this case commenced casual employment with the employer in 2018, then was offered a part-time position in 2019 with a contract (the “Part-Time Contract”), and then a full-time position in 2020 with another contract (“the Full-Time Contract”). The parties’ positions differed concerning the enforceability of these contracts.

The Court stated the relevant legal principles as follows:

[38] An amendment to an employment contract must provide a benefit to both parties. Continued employment alone is not enough to constitute consideration for termination clauses … Something more is required in the form of forbearance or some other benefit or incentive to the employee.

[39] In Singh v. Empire Life Insurance Co., 2002 BCCA 452 the Court of Appeal found that where there was no promotion, new job opportunity, or other advantage offered to the plaintiff, other than continued employment, there was no fresh consideration and the modified employment contract at issue was unenforceable. The Court affirmed the general principle that modification of a pre-existing contract will not be enforced unless there is further benefit to both parties: at para. 15. The need for consideration reflects the vulnerability of an employee dependent on their continued employment who has an inequality of bargaining power when an employer amends an existing employment contract: Hobbs v. TDI Canada Ltd., 2004 CanLII 44783, at para. 42, 246 D.L.R. (4th) 43 (O.N.C.A.).

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[41] This Court in Krieser v. Active Chemicals Ltd., 2005 BCSC 1370 [Krieser], set out the three steps of analysis to determine if there is a fresh consideration element required when an employment contract is amended, at para. 24:

First, did the Contract contain new terms which were detrimental to the plaintiff? Second, if it did, what is required at law to provide adequate consideration for such changes to the employment relationship? Third, has the defendant established adequate consideration on the facts here?

[42] If an employer wishes to amend an employment contract, it has generally been held that fresh consideration is required in the form of a benefit to both parties. In the absence of a benefit, the contract will be unenforceable for lack of consideration.

[43] In applying the test to the facts in Krieser, Justice Neilson (as she then was) found that introducing new terms that were detrimental to the employee in the form of new termination provisions and anti-competition clauses activated the first step. Second, the intention of the employer that the employee would be terminated if he refused to sign the new contract for an unknown employment period was not enough of a benefit to the employee. An added benefit, such as greater security of employment through forbearance for a specified time, or a new term beneficial to the employee, would be adequate consideration. Third, there was nothing in the contract that conferred a benefit to the employee. There was no increase in job security, the employee was still a probationary employee, and the termination provision, while more generous than the Employment Standards Act, R.S.B.C. 1996, c. 113 during the employee’s probation, would not be advantageous when he passed his probationary period: Krieser, at paras. 25, 32, 35.

Applying the foregoing to this case, the Court ruled that a more restrictive termination clause in the temporary Full-Time Contract was not enforceable due to lack of fresh consideration: the switch from part-time to full-time was only temporary and provided no real benefit to the employee.

The Full-Time Contract included the phrase that “either party may end this agreement with one weeks’ notice” and that “[a]t the end of this term position, you will return to your own or a comparable position”. Finding inconsistencies between the Part-Time and Full-Time Contracts, the Court upheld the most reasonable reading, that the Part-Time Contract, the original contract, remained in place, despite the temporary reassignment under the Full-Time Contract. While the Full-Time Contract temporarily altered the employee’s position, it was held that the Part-Time Contract continued. Further, the Court noted that, for practical purposes, the employee’s salary and hours of work remained relatively the same. 

Damages

Aggravated Damages

Having first awarded three (3) months’ notice to the employee for her dismissal, the Court discussed damages relating to the manner of dismissal. The Court considered the claim regarding manner of dismissal under aggravated damages and the claim for damages regarding the termination letter errors under punitive damages.

The Court provided that an employee seeking to recover aggravated damages must establish two conditions: (1) the employer has breached its duty of good faith and fair dealing in the manner of dismissal, where examples of conduct that may constitute a breach of the employer’s duty of good faith and fair dealing include being untruthful, misleading or unduly insensitive in the course of dismissal, or attacking the employee’s reputation with declarations made at the time of dismissal, and (2) the employee suffered compensable damages as a result of the breach, which requires an employee to prove that something beyond the normal distress and hurt feelings that invariably accompany the loss of employment occurred.

In Hrynkiw v. Central City Brewers & Distillers Ltd., 2020 BCSC 1640, the employee corroborated his claim of mental distress through his family doctor and his wife. His employer had accused him of misconduct, leaving him devastated and humiliated, especially considering that acts of dishonesty and fraud could have professional impacts on his career as a Chartered Accountant. The Court awarded aggravated damages for the manner of dismissal.

In Sifton v. Wheaton Pontiac Buick GMC (Nanaimo Ltd.), 2010 BCSC 353, an employee who was constructively dismissed claimed that his employer spoke to him in a manner that caused him mental distress. The Court found that, while the employer was assertive and perhaps could have handled the situation better, the employer was not intimidating the employee. The Court dismissed the claim of mental distress in the manner of dismissal. It was noted that conduct can be insensitive but not amount to “unduly insensitive”.

Considering the foregoing and other cases, the Court found that the employee was no doubt distraught and humiliated by her sudden termination, and by the fact that she had to exit in front of customers; however, this did not rise to the level of public humiliation that would warrant aggravated damages.

Punitive Damages

In contrast to aggravated damages, which are compensatory in nature, punitive damages are restricted to advertent wrongful acts that are so malicious or outrageous that they are deserving of punishment on their own. The goals of punitive damages include deterrence and denunciation.

The termination letter at issue in this case contained errors, including the following:

• the notice offered to the employer consisted of two (2) weeks’ pay in accordance with the Employment Standards Act, rather than payment consistent with either the full-time contract (one (1) month) or the part-time contract (determined under standards similar to the common law);
• a lump-sum payment of $206.14 was offered, less deductions, which was identified as a “gratuitous lump sum payment…equivalent to 15% of your termination pay in lieu of benefits”; and
  
• it provided a non-solicitation provision restraining the Plaintiff from soliciting the Defendant’s business for a period of 12 months, rather than the six (6) months provided for within the part-time and full-time contracts.
  

The Court noted that these errors would have limited the employee’s entitlements and increased her obligations. By contrast, the employer stood to benefit from the misleading errors contained in the termination letter. Further, had the employee signed the termination letter as presented she would have released her legal claims against the employer.

The Court discussed:

[99] The two weeks pay in lieu of notice listed in the termination letter was less than the one month the Plaintiff was entitled to under the Full-Time Contract (if that contract applied), or the notice commensurate with the Plaintiff’s “age, tenure, position and employment opportunities” set out in the Part-Time Contract (and which this Court has held to be three months’ notice in the circumstances). The gratuitous lump sum payment was in fact less than the amounts that the Defendant owed the Plaintiff under either the Full- or Part-Time contract. The wording of the termination letter suggested that the Defendant was offering the Plaintiff a kindness (a gratuitous payment). The termination letter asserted that the Plaintiff was “required” to sign it. Finally, the termination letter imposed a non-solicitation period of 12 months, when both the Part- and Full-Time Contracts each contained only a six month non solicitation period.

The employer posited that it was not deliberately dishonest and misleading in the termination letter, that it was not designed in bad faith to mislead the employee. The employer further pointed out that it was willing to correct the errors as soon as the employee’s lawyer pointed them out.

While the Court noted that the employer was processing over 100 termination packages for reorganized employees, it stated:

[101] The volume of termination letters an employer issues does not lessen the obligation to ensure they are correct. There is no volume discount on correctness for termination letters.

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[104] The Defendant was undertaking a large number of terminations in a short time period. However, there is an obligation on an employer terminating an employee in such circumstances to act in good faith and reasonably. A “cookie cutter” termination letter drafted without regard to the individual circumstances of each employee falls short of the standard required.

[105] The Defendant argues that the errors in the termination letter were not reprehensible, vindictive, malicious, harsh, high-handed, and egregiously objectionable, and further, that the errors were inadvertent. The Defendant accepted and corrected the errors as soon as the Plaintiff retained legal counsel who pointed those errors out.

[106] The Defendant’s argument highlights the crux of the problem. In this instance, the Plaintiff hired a lawyer. Had she not, these errors may not have been discovered and corrected. Given the circumstances of a termination, and its highly emotionally charged nature, it is equally as likely that the Plaintiff, or others in her position, could have simply signed the termination letter.

[107] This is a situation concerning recently terminated employees who are potentially significantly vulnerable, and in distress. The Defendant’s lack of attention to detail in the termination letter, especially where the errors fall so clearly in their favour, is unacceptable, and draws an award of punitive damages.

[108]   I award the equivalent of two-and-one-half months’ salary to the Plaintiff in punitive damages for the errors in the termination letter. This is the amount that the Plaintiff would have lost had she signed the erroneous termination letter as presented.

The employer’s errors in the termination letter could have resulted in the employee signing away entitlement to additional notice, doubling the period of her non-solicitation prohibition, and releasing all claims against the employer. Had the employee not consulted a lawyer, her rights may have been significantly impacted. In view of the circumstances, 2.5 months’ award in punitive damages was granted.

Takeaways

This case serves as a good reminder for Employers to treat employment contracts and terminations very seriously.

Our first takeaway is to keep in mind that in order to amend existing employment contract, you need to provide fresh consideration.

Second, when it comes to termination letters, act in good faith and honestly, and respect the terms of existing contracts. In this case, the termination letter didn’t match the terms of the employment contract, and this error led to an additional 2.5 months’ award against the Employer, for a total of 5.5 months’ award (instead of 3 months otherwise).

An important takeaway is to always get advice from experienced professionals specific to your circumstances and your employees when amending and implementing employment contracts or planning a termination.

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.

When the NDP introduced in 2019 numerous changes to the Labour Relations Code (“Code”) largely in favour of unions, it opted to keep the secret ballot vote in union certification applications where unions seek to become the exclusive bargaining agent for all the employees in the bargaining unit.  This was largely seen as a concession to the Green Party who insisted on keeping the secret ballot vote and preserving democracy in the workplace.

At the same time the government introduced a number of changes to the Code that made it more difficult for employers to defeat a certification drive.  This included shortening the time frame to hold a secret ballot vote and greatly reducing employer free speech.   One of the key changes in 2019 was found in section 14 (4.1) which allows the LRB to certify a Union without a vote where it finds there has been an Unfair Labour Practice (“UFLP”) committed by the employer and the LRB “believes it is just and equitable in order to remedy the consequences of the prohibited act.”

In its first decision on section 14 (4.1) the LRB automatically certified a union for a bargaining unit of more than 80 employees because the employer had terminated the two inside union organizers. Only one employee had signed a union card.  The LRB justified this extra ordinary response by saying that this involved “hit hard, hit early” tactics that were intended to and did in fact achieve stopping the organizing “in its tracks”.  Given these considerations the LRB found that it would be impossible to remedy the UFLP by a vote which would  not disclose the true wishes of the employees:  Salade Etcetera Inc v UFWC 1518 2020 BCLRB 109 (appeal of 2020 BCLRB 34 dismissed) 2020 BCLRB 109.pdf.

In Waste Control Services Inc v. OE’s Local 115, 2022 BCLRB 13 2022, the LRB dismissed a Union’s request for remedial certification in circumstances very similar to the facts in Salade Etcetera Inc.

The employer learned of a union organizing drive and promptly fired the lead union organizer, an employee of 1 ½ years with 22 years experience in the waste management business.  He had never been disciplined by the employer. There were 100 employees at the location where the organizing drive commenced.  Shortly after learning of the organizing drive the employer fired the union organizer without cause.

The LRB found that the dismissal of the Union organizer was without proper cause and more importantly was tainted by anti-union motivation while a certification drive was ongoing in contravention of section 6 of the Code.  It held that the Employer’s witnesses’ evidence “regarding the issues they testified to about the Dismissed Employee’s performance was unreliable and did not establish proper cause for dismissal.” (para 41)

Turning then to the issue of remedial certification as a remedy for the UFLP the LRB found that this case was distinguishable from Salade Etcetera Inc.  It stated:

“In the case before me, I find the Employer's actions were relatively severe in that they involved the dismissal of the Union's chief organizer at the very start of an organizing campaign. However, I find the dismissal was not done in a way which would make it impossible for the Dismissed Employee to return to the workplace. No cause for dismissal was alleged at the time, and it was not done in front of other employees. I find the likely effect of dismissal on the employees and the Union's ability to organize them is not such that only remedially certifying the entire workforce would constitute a just and equitable remedy. With this decision, the Employer's dismissal of the Dismissed Employee will quickly be reversed and remedied. I further find any damage to the Union's ability to organize can be remedied by the orders given below. I am satisfied the following remedies are just and equitable as well as appropriate for the facts before me.” (para 50)

However the LRB did make a number of orders intended to rectify the damage done by the blatant UFLP committed by the employer.  It ordered:

“I make the following declarations and orders:

I declare the Employer has breached the unfair labour practice provisions of the Code, contrary to Sections 6(1), 6(3)(a), 6(3)(b), 6(3)(d), and 9. I order the Employer to immediately cease and desist from committing further breaches of the Code.

I order the Employer to immediately reinstate the Dismissed Employee to employment with compensation for all wages and benefits lost by reason of the unlawful dismissal.

I order that within 5 calendar days of the receipt of this decision, the Employer shall post a copy of the Board's decision in a conspicuous place at the worksite and mail a copy of the decision to each of the employees at the Employer's expense.

I order that within 30 calendar days of the date of the decision, the Employer must allow the Union to have a 60-minute meeting with the Employer's work crews at the Employer's expense during work time and in the workplace without management or relatives of persons related to the owner present.”

TAKEAWAYS

Unions continue to utilize the tools given to them in 2019 to enlarge their membership base and certifications.  Avoiding a vote is very important as unions are not always successful in winning the employees over when they are entitled to express their views in a totally secret ballot vote.  So, a remedial certification is very useful in assisting in their organizing efforts.

The circumstances when a remedial certification will be granted are now very unclear.  The facts in both these two cases are very close yet a remedial certification was denied in Waste Control. As an employer you do not want to be rolling the dice at the LRB.  Further even though no remedial certification was ordered, the employer in Waste Control was subject to many orders all geared towards providing the union with a platform to organize the employees.  Further any action taken by the Employer will be highly scrutinized in light of the findings of UFLP.

One other key factor to note in this case.  Under section 5(2) a union can demand a hearing into an  UFLP complaint within 3 days.  So that means the employer has very little time to instruct counsel and prepare for the hearing. Therefore, employers are advised to take steps to familiarize themselves with the provisions and procedures under the Code before a union comes knocking on its door.

The Labour and Employment Group at Kane Shannon Weiler will be glad to provide you with an overview of the provisions and procedures and suggest steps to be taken to avoid an UFLP complaint and consequent remedial certification.

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.

THE EMPLOYMENT & LABOUR GROUP IS PRESENTING AT CPHR BC LEGAL SYMPOSIUM 2021 ON FEBRUARY 4, 2021

The effects from the pandemic in 2020 have brought both novel and challenging employment law shifts, unlike in previous years. As we prepare for the new year, employers will be required to continually monitor and stay informed of new legal developments as they plan to effectively manage their workplace obligations in 2021.

The Chartered Professionals in Human Resources (CPHR) BC & Yukon have put together the Legal Symposium 2021 Series from January 28 to February 18, 2021, where expert lawyers including KSW’s Melanie Booth will address the most pressing employment law and workforce challenges, accommodation updates, health and safety and all the potential impacts employers may face as the pandemic continues to affect organizations.

Join the presentation on February 4, 2021 to learn How Organizations Can Navigate Remote Work and Its Risks.

With the pandemic’s shift from office centred work to remote work, employees are making due by using devices and spaces that may not be ideal. There are additional risks that remote work brings to organizations and this session will provide some helpful tips to safely and effectively navigate remote work in your organization.

Melanie will cover the following topics related to remote work:

• Legal considerations
• Employee performance management
• Occupational health and safety considerations
• Family status and accommodation
• Privacy concerns

Read More about the Symposium and Register Here.

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Vancouver Giants – Feel Good Fridays

KSW Lawyers in partnership with our friends at the Vancouver Giants have organized the Feel Good Fridays community initiative that ran between June and July 24, 2020.

Over the course of the initiative, we wanted to reward people in our communities for their special contributions during these difficult times, and did so with your help! Prizes included gift certificates purchased from local re-opened businesses to show our support for our local marketplace.

Featured Local Businesses

We love supporting local businesses, especially in times like this when they need it the most. Gift cards for the following local businesses were provided to the winners for Feel Good Friday!

• Spa Tru Clinics
• The Hockey Shop
• S+L Kitchen & Bar
• Trading Post Brewing Company
• Milner Feed & Pet Supply
• Me & Eds Pizza Parlors
• Cedarbrook Bakery & Deli
• Backyard Vineyards

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FEEL GOOD FRIDAY HEROES

This week we want to recognize Melody and her team at Yogi Street Dog Rescue!

“Yogi Street Dog Rescue brings dogs to Canada for a second chance at life and raises money to feed dogs that are living on the streets without a warm place to sleep!”

Thanks for all your hard work Melody! We have purchased a gift card to local business Milner Feed & Pet Supply for Melody!

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FeelGoodFriday July 10 Winner: Nicole Saxvik Essential worker

Our Feel Good Friday winner this week is Nicole Saxvik! Nicole is an essential worker who has been working very hard over the last few months conducting in-home assessments to ensure seniors’ homes are outfitted with the mobility equipment they need. Thanks for all your hard work Nicole!We have purchased a gift card to local business Milner Feed & Pet Supply for Nicole!

Next exciting prizes include gift cards to: Spa Tru Clinics Trading Post Brewing Backyard Vineyards

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FeelGoodFriday July 3 Winner: Nicole Longacre-OBrien, UPS Langley Wonderful positive attitude

This week we want to recognize Nicole Longacre-OBrien, from UPS Langley – Nicole always goes above and beyond for coworkers and people in our community.

“Nicole has always been a huge part of the Langley community, and approaches everything with such a positive attitude. She always goes above and beyond for everyone she works with, but last week she did something NEXT level.” When an elderly member of our community went to Nicole’s store to inquire about computer video services for a zoom call with her friends during these difficult times of separation, Nicole didn’t shy away from the perfect opportunity to give back to her community and help. She offered her personal laptop and private space, and set up a zoom date for the group!

In her own words, here is the story – read more from UPS Langley’s post here: https://www.instagram.com/p/CBV2bxjB1KF/

The world is a sad and angry place right now ???? but I would like to remind you about the POWER OF KINDNESS ????. Last week we had this little elderly lady come into the store to see if we had a computer she could borrow so she could have a zoom call with all her friends. Although it wasn’t a service we provide…my answer was..”of course YES!!” I let her know that none of my computers had video capability but I would bring my laptop in so she could enjoy some time with her friends in my back room. She was thrilled and went off to set a date ❤️She checked in a few times during the week to make sure we were still ok with her doing it. Well yesterday was the day (…)

Our gift for this week’s hero is a $100 to Trading Post Brewing.

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FeelGoodFriday June 26 Winner: Dan Morrison, Foreman, Giants Fan, Awesome Dad

This week we want to recognize Dan Morrison; Foreman, Giants Fan and most importantly, awesome Dad!

“Dan is an essential worker and has been working full-time during this entire quarantine, while still coming home everyday after work and spending the evenings looking after our daughter so I can have a few hours off. He is always happy, always smiling. He is a phenomenal family man, and an extremely valued Foreman at work. He is the epitome of a wonderful human!” says his wife Carey-Anne

Our gift for this week’s hero is a $100 to Trading Post Brewing.

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FeelGoodFriday June 19 Winner: Carrie, Supermom of 2 boys

This Friday we wish to recognize and appreciate Carrie, supermom of two boys.

Carrie was nominated by one of her sons, who wanted to recognize her for her all her help with his school work, for making him awesome lunches and for encouraging him to keep practicing hockey and keep active during the pandemic. “She is the best,” he noted in his nomination.

Carrie will receive $150 to The Hockey Shop Source for Sports in Surrey to help with continuing to keep her boys active and engaged.

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FeelGoodFriday June 12 Winner: Wes and Brant at Sheila’s Catering

This Friday we wish to recognize and appreciate the Sheila’s Catering Co. team for their contributions to their community! Wes will receive a gift card to our wonderful local Cedarbrook Bakery, Deli & Bistro in Langley. Here’s a bit of what they do on a regular basis, and how they helped during these times.  

Sheila’s Catering Co. is owned by local residents Wes Levesque and Brant Darling and was founded in 2009 in South Surrey. They have over 40 years combined in the restaurant/catering industry and have won several awards including best caterer in the Peace Arch News 2017-present.

Sheila’s Catering Co. caters all types of functions and is heavily involved in the community and many non profit organizations locally.  Once the pandemic was announced Wes and Brant followed their core values of ACCEPTED (Adaptability, Community, Collaboration, Engagement, Positivity, Teamwork, Expression, Development) which guided them into pivoting their operations. Within a couple weeks they had launched on online marketplace offering prepared meals and more importantly built the framework to launch an initiative to feed the frontline workers.

Since that day of March 26 they have fed over 5000 frontline workers at Peace Arch Hospital, Surrey Memorial, Delta Hospital and many care homes around the community. All of these meals were donated by the community.

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FeelGoodFriday June 5 Winner: Simon Gau at CityReach Care Society

The first Feel Good Friday hero we want to recognize and appreciate is Simon Gau at the CityReach Care Society. Simon received a gift card to our local business S+L Kitchen and Bar in Langley. The CityReach Care Society has always made incredible contributions to their communities through their different programs, and moreso during the pandemic. Here is a bit of what Simon had to say on what they do:

At CityReach we are in the HOPE business. We have a number of different programs and events to serve our community in both Vancouver and the Tri-Cities. We offer an Out Of School Care Program with 35 full time students. We have a monthly Community Closet where people can come and get good second hand clothes. We give out free school backpacks with supplies and offer free haircuts to kids each year as they go back to school. We do Christmas Hampers for families with wrapped toys for kids. We have special relationships with local elementary and high schools called Adopt-A-School where we can offer unique access to our programs and finial aid with specific projects. We even have our own Bee Apiary to do our part in “thinking green” for our community.

Most notably during COVID-19, we have see the radical growth of 3 programs: Food For Families, Food For Families Mobile, and Meals To Go. Food For Families is a healthy food bank that has grown over 600% since the start of the pandemic. We are packing and distributing 700 free family-sized grocery hampers every week. Hampers are filled with fresh fruit and vegetables, grains, dairy, meat, and even fresh prepared meals! We have partnered with Broadway Church and they have generously offered to deliver 200 of our hampers to families, single parents, and seniors, who can’t access our program due to health conditions. Food For Families Mobile is simply a mobile pop-up version of our program where we bring fresh grocery hampers directly into a new community in South Vancouver, Port Coquitlam, Port Moody, and Coquitlam. Meals To Go is a program where we serve a free fresh and healthy lunch to vulnerable people 5 days a week. Currently we serve over 350 meals per week with this program. We have seen a spike in vulnerable families accessing our programs in response to COVID-19. We are honoured that the community trusts us enough to let us walk with them during these unprecedented times.

Lastly, I love to add a huge THANK YOU to our amazing volunteers and food security partners without whom our programs would not be possible. CityReach is proof that when a community comes together amazing things can happen.

Here’s a picture of some of our some of staff and volunteers at a community event in February.

Who is KSW Lawyers?

KSW Lawyers is one of the biggest full service law firms South of the Fraser. We are here to support you during these uncertain and challenging times.

We want to help you, your business and your employees by sharing our knowledge and information.

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KSW LAWYERS ARE HERE TO SHARE KNOWLEDGE WITH THE BUSINESS COMMUNITY

The KSW Lawyers Employment & Labour Group finish their three-part winter series presentations on: Recent Amendments to the Labour Relations Code, Employment Standards Act Amendments, and The Art of Hiring.

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As previously covered in our earlier article “Important Changes to BC Employment Standards Act”, Bill 8 received Royal Assent on May 30, 2019 and it proposed gradual implementation of changes to the BC Employment Standards Act. Then on May 11, 2021, the B.C. government introduced Bill 13 – 2021: Employment Standards Amendment Act (No 2), 2021 (the “Bill”), which provided employees with up to three days of paid sick leave related to COVID-19 between May 20, 2021 and December 31, 2021, and also established a permanent sick leave program that would take effect on January 1, 2022. The full Bill is available here and the Bill received Royal Assent on May 20, 2021.

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After consulting with businesses and workers further, on November 24, 2021 the Labour Minister Harry Bains announced that effective January 1, 2022, employers are required to provide their eligible employees with up to 5 days of paid sick leave per year if they need to stay home because they are sick or injured. Both full-time and part-time employees are eligible for this benefit. This new paid sick leave is currently the most offered in Canada. Additional Amendments were introduced on March 31, 2022 regarding calendar year versus employment year, and unionized workplaces - see our article BC Paid Sick Leave - April 2022 Update to New Sick Leave.

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The business community and the local BC Chambers have voiced a lot of concerns with the timing and impact of this new leave on employers given many other rising costs, including the chain supply issues, labour shortage, BC floods impact, employer health tax, increases in minimum wage, and the ending of some Covid-related subsidies or programs for businesses. Statement of Fiona Famulak, President and CEO of the BC Chamber of Commerce can be found here.

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Paid Sick Leave Eligibility

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The paid sick leave entitlement applies to all employees covered by the Employment Standards Act (ESA), including part-time, temporary or casual employees, as well as most seasonal or temporary foreign workers.

The ESA does not cover certain types of employees, including:

• Federally-regulated sectors
• Self-employed workers or independent contractors
• Employees in professions and occupations excluded from the ESA

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To qualify for this new paid leave, employees must be employed for 90 consecutive days.

Employers are permitted to ask an employee for sufficient proof of illness or injury, which an employee must provide as soon as practicable.

An employee does not need to give advance notice or seek prior approval to miss a day of work due to personal illness or injury.

Sick Leave Pay

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You need to pay your employees their regular wages for these days. To calculate for employees working various hours use the same formula as calculating statutory holiday pay:

                        Total wages ÷ number of days worked = sick day pay (an average day's pay)

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Base your calculation on days worked during the 30 calendar days before the sick day – include vacation days.

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Include all wages – this includes salary, commission, statutory holiday pay and paid vacation. Don't include overtime.

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The average day’s pay is then multiplied by the number of sick days the employee requests.

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Other Points & FAQs

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A few interesting points and questions that came up from our discussions with employers and Chambers network:

• If not fully used, days don’t carry over into the next year, and nothing needs to be paid out by the employer. If an employee uses 3 days for 2022, in 2023 they will have 5 days. There is a question around whether employers have to keep track of the days per year of service or calendar year.
• Part time workers also get 5 days, however the calculation of pay they get for that sick day is based on their average pay based on last 30 days as outlined in the above formula.
• Employees are also entitled to 3 days of unpaid sick leave in addition to the 5 paid sick leave.
• There is currently no limit for employees with multiple employers – they can receive up to 5 paid sick days from each employer.
• There is no reimbursement or subsidy for employers from the government at this time, employers are entirely responsible for the cost.

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Our employment and labour lawyers are heavily involved in various local BC Chambers and Policy Committees, attend roundtable discussions and present webinars regularly on the Employment Standards Act and related legislation. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters. If you have any questions or need assistance, please Submit a Contact Form or reach out to Chris Drinovz at [email protected].