New – BC employers must provide employees 5 days of paid sick leave

The BC Government has announced that starting January 1, 2022, all businesses with employees falling under the Employment Standards Act will be required to give their employees up to 5 days of paid sick leave each year. Paid sick leave is a significant change in the minimum employment standards in BC.  We tackle some frequently asked questions below:

Q:        When does this rule come into effect?

A:         January 1, 2022

Q:        Are all businesses impacted?

A:           All businesses with employees falling under the BC Employment Standards Act are required to follow this rule.

There are some exceptions which could include:

  • unionized workplaces (which would have their own collective agreements);
  • independent contractors (who would have their own contracts);
  • certain professionals such as engineers, accountants, or lawyers (read more); and
  • federally-regulated businesses, for example those whose businesses are in the air transportation, banks or telecommunications industries (see list).
Q:        Which employees are covered?

A:            All employees falling under the Employment Standards Act, including full-time, part-time and casual workers.

Q:           Are there any conditions these employees need to meet before they become eligible for the paid sick leave?

A:         The employees need to have been employed for at least 90 calendar days. There is no requirement that they have worked a certain number of hours or days.

Q:           Does the 5 days of paid sick include the 3 unpaid days of sick leave that was recently added to the Employment Standards Act as a pandemic response?

A:            No, the 5 paid days are in addition to the 3 unpaid days, meaning that starting January 1, 2022, an employee could be at minimum entitled to 8 days off if they are sick, 5 paid and 3 unpaid.

Q:           Is a doctor’s note required?

A:         Employers are allowed to ask for “reasonably sufficient proof” and the employee must, as soon as practicable, provide such documentation to their employer.  No further details have been provided about what “reasonably sufficient proof” might be.

Stay tuned! We expect there will be more guidance from the Government of British Columbia coming out in the following weeks and we will updating this post.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Equity, Stock Options, RSUs – The Basics

Equity, Stock Options, RSUs – The Basics

So, your employer granted you stock options, restricted share units (RSUs), phantom stock options or some other kind equity compensation. Great news, right? Or is it? Over the years, countless employees have confided in me that they aren’t exactly sure what they have received, what the value is, or how to realize the value. If this sounds familiar, read on!

Understand the Jargon 

Equity compensation comes with a vocabulary all its own – vesting, exercise price, tranches, stock options, restricted shares, phantom stock, equity plan, to name a few such terms.  What are vested options vs. unvested options? What is a stock option vs. stock?  A restricted share unit vs. a share? These words and concepts can be the difference between a big  dollar equity payout and zero. If you don’t know the jargon, it will be impossible to understand what you’ve been granted, so you need do some research.

Ask Questions 

All employees are entitled to understand their compensation packages. Unfortunately, when it comes to the daunting landscape of equity compensation, it can be hard to know what questions to ask, or even whom to ask. And when equity compensation is part of a new hire package, many are understandably reluctant to ask for details. As a starting point, ask questions of the company’s human resources department or the recruiter who hired you. If they can’t help you, find someone who can. Always ask for copies of documents that are referenced in the compensation letter such as the underlying stock option or equity “plan”, and the “standard equity grant agreement.” The small print really can make all the difference.

What Happens if You Leave the Company? 

Equity compensation is generally used as a retention tool, sometimes referred to as “golden handcuffs” to keep you with the company. This means that payouts may only happen if you stay for a long period of time, and have no value if you leave the company before a set date. For this reason, it’s important to know what happens to your equity compensation if you resign or your employment is terminated. For example, an ill-timed resignation may mean you lose your right to significant portions of your equity package. This underlines the importance of taking the time to ask questions at the outset to avoid nasty surprises down the road. If you are thinking of quitting or have been terminated, it’s a good idea to consult with an employment lawyer who has experience with equity compensation as there could be a lot at stake.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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Severance for a Contractor? What, no way!

I hired this person to work in my business. They asked to be a contractor. They wanted the flexibility and the write offs. It didn’t work out and now they want severance. What?! I don’t owe them anything! … do I?  

They hired me as a “contractor” but always treated me like an employee.  Then they let me go with no notice. Can they really do that to me!?

These questions come up all the time and the lawyerly answer to both is “it depends.” Why? Because the law says that even if you have a “contractor agreement” with someone, you can owe them severance. So when is a “contractor” entitled to severance? We have to look beyond the agreement and examine the true nature of the relationship between the company and the “contractor” to answer this. It often boils down to whether the contractor was really running their own business or whether they were really working for the company. Key factors are:

  • Exclusivity – Was the contractor able to work elsewhere? Did they? How dependent were they on the income? The more exclusive and dependent the relationship, the more likely the person is to be entitled to severance.
  • Control – Did the employer control the contractor’s work and hours? The more control the company has over the contractor, the more likely the company owes the contractor severance.
  • Tools and Expenses – Who owned them? Who paid to repair them? Was the contractor reimbursed for expenses? Contractors normally supply their own tools and are not reimbursed for personal expenses –expenses that are not passed through to a client. True independent contractors are not entitled to severance.
  • Profits and losses – If the contractor completed the job quickly, did she get the profit? If it took too long, did she take the loss? If the contractor had little opportunity for profit or loss, they are more likely to be seen to be working for the company and owed severance.
  • Workers – Could the contractor hire its own workers to get the job done? If not, the contractor is more likely to be seen to be working for the company and owed severance.
  • Contract – What does it say? Did it reflect the true reality of the situation? We have even seen “contractor” agreements that refer to the contractor as an “employee” throughout!

Whether you are a company or a contractor, it is important to have a contract that reflects the true intentions and the reality of the situation. If you don’t:

  • as a company you can be surprised with liabilities such as having to pay severance to “contractors” and sanctions for not complying with Employment Standards, tax and other legislation; and
  • as a “contractor” you can be out of work on little or no notice with potential claims that you have to fight about instead of something fair upfront.

Whether you need a contact, or are involved in a claim, a knowledgeable employment lawyer can help.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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What is Employment Law? Why should Employers care about Employment Law?

什么是就业法?雇主为什么要遵循就业法?

What is Employment Law? Why should Employers care about Employment Law?

吴鹰杰

Jim Wu

加拿大的就业法是站在雇员的立场上,是保护雇员的。雇主必须遵从法律并承担雇主应有的义务。反之,雇主将有可能面对风险,造成意想不到的损失。

Canadian laws recognize that there is a power imbalance between employees and employers. What this means is our laws include legal protections for employees and legal obligations for employers. As an employer, you might wonder, what is at stake for not following the rules?

我们经常会处理类似以下的一些例子(以下称呼及姓氏并非真实):

The following fictious examples are what we typically deal with in our practice as employment lawyers (please note that any actual resemblances are purely coincidental):

  1. 黄先生在温哥华岛购买了一个度假胜地。为吸引更多的中国游客,黄先生雇佣了一位中国人代替了原礼宾部负责人(欧洲人)。黄先生后来收到了他前礼宾部负责人的来信。来信要求黄先生赔偿几万加元,要不就会投诉到人权审裁处。

Mr. Wong has purchased a resort in Vancouver Island. Awestruck by the local beauty, Mr. Wong hopes to attract more Mandarin-speaking tourists and he replaces his head of concierge (a Caucasian) with a Chinese one. Mr. Wong later receives a letter threatening a human rights complaint from his former head of concierge, demanding tens of thousands.

涉及法律的问题:          黄先生可能因种族或出生地的歧视而解雇了前礼宾部负责人。

The Legal Problem: Mr. Wong may have discriminated against his former head of concierge by firing him because of his race or place of origin.

黄先生面对的风险:    黄先生可能会被裁定违反Human Rights Code。结果,他可能不得不支付多种赔偿,包括补偿损失的工资(wage loss)和“损害尊严”赔偿(injury to dignity damages)。除了这些以外,黄先生可能还需要聘用律师来面对人权投诉。

What is at stake for Mr. Wong: Mr. Wong may be found to have breached the Human Rights Code and an award of financial damages could be made including wage losses and injury to dignity damages.  Mr. Wong may also need to spend a lot of money to either fight or settle the human rights complaint.

 

  1. 餐馆老板彭女士的一名女员工被其餐馆的另一名男员工受到欺凌和性骚扰。事后,那位女员工向WorkSafeBC举报。 当WorkSafeBC在调查过程中提出要查看餐馆职业健康和安全条例,餐馆无法提供。

A female employee of Ms. Peng, a restaurant owner, made a complaint to WorkSafeBC that she was being bullied and sexually harassed by a male colleague. During its investigation of the complaint, WorkSafeBC asks for the restaurant’s bullying and harassment policy and procedure but Ms. Peng is unable to do so as the restaurant does not have one.

涉及法律的问题:   Workers Compensation Act要求彭女士制定餐馆职业健康安全条例,并对所有雇员必须进行该政策和程序培训。

The Legal Problem: The Workers Compensation Act requires every employer to have a bullying and harassment policy and procedure and to train all of their employees on that policy and procedure.

彭女士面对的风险:   彭女士可能会因不遵守法律规定,收到遵守令。公司也可能因违反工作场所安全标准而被罚款。在最严重的情况下,这些罚款可能超过100,000加元。

What is at stake for Ms. Peng:   A finding of non-compliance and order to comply will likely be made.  Companies can also be subjected to fines under the Workers Compensation Act, which can exceed $100,000 for the most extreme safety violations.

 

  1. 董女士开办了一个课余学习中心。董女士对申请职位的老师以2小时的无薪代课作为她聘用评估。目前已被聘用老师有20 位。最近,董女士收到了Employment Standards投诉。

Ms. Tong runs an after-school learning centre. She interviewed 20 prospective instructors and had them as a part of their interview, each teach a 2-hour class without pay. Recently, Ms. Tong received an Employment Standards complaint.

涉及法律的问题:     Employment Standards Act 要求雇主支付代课或曾代课老师时薪,哪怕是试用但未被录用。

The Legal Problem: Under the Employment Standards Act, Ms. Tong must pay all her job applicants for their 2 hours of teaching because it is considered to be “work”.

董女士面对的风险:   赔偿代课或曾代课老师时薪,并罚款至少1万加币(500 元 为一位老师)。

What is at stake for Ms. Tong: On top of paying wages for the 2 hours of work for all 20 of her prospective instructors, Ms. Tong may be fined a minimum of $10,000.00 ($500 fine for each affected prospective instructor).

 

  1. 张先生无书面合同雇用了一位雇员。一年后,张先生解雇了那位雇员,并给了该雇员一些补偿。但该员工不但没有接受张先生的补偿,而且请了律师并向他起诉。

Mr. Chang hires his newest employee without a written contract. A year later, Mr. Chang fires that employee and offers him some severance. The employee rejects Mr. Chang’s offer and hires a lawyer and sues him.

涉及法律的问题:     由于张先生没有书面雇佣协议。

 The Legal Problem:         Mr. Chang does not have a written employment contract.

张先生面对的风险:   张先生可能要聘用律师面对诉讼。诉讼结果可能法院命令张先生付遣散费。

What Mr. Chang potentially faces: A court order to pay severance pay, as well as spending lots of money to either fight or settle the lawsuit.

综上所述,雇主要遵循就业法。雇主无论是雇用,解雇,或者介于两者之间的任何冲突,雇主仍有可能违反就业法。为了最大程度减少您的风险,建议您聘用就业法律师保护雇主的权力。

 

In summary, employers face serious liabilities. Whether it is hiring, firing, or anything in between, even the most cautious employer can run afoul of employment laws. There are proactive steps you can take to avoid these risks. To minimize liability, we recommend you get advice from an employment lawyer.

 

本博客旨在提供一般性信息,不作为正式法律建议用途。

This blog is not intended to serve as legal advice, and only provides general information.

每种具体情况必须依据其自身事实加以考虑。如若需要相关法律咨询建议(普通话或上海话),请联系吴鹰杰律师。联系邮箱地址:[email protected]

Every situation must be considered on its own facts. Need legal advice in Mandarin or Shanghaiese Dialect? Contact Jim Wu [email protected].

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