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Employment Standards Legislation (page 395)

In Alberta, the legislation setting out minimal entitlements for employees is the Employment Standards Code, as supplemented by the Employment Standards Regulation. Both can be viewed under Legislation, below. This legislation guarantees that employees will enjoy some minimal protections. It is against the law to waive these protections and both the employer and employee can be penalized if, for example, the employee works for less than minimum wage.

Payment of Earnings

In Alberta, the term “earnings” is defined as including wages (salary, commission, or other remuneration), overtime pay, vacation pay, general holiday pay and termination pay. Wages and overtime are to be paid at least monthly, payment being made within 10 days of the end of each pay period.

In Alberta, the minimum wage is to be set by regulation, giving the government more flexibility to make adjustments. Alberta used to differentiate between adults and minors, demanding a minimum wage of $5.00 per hour for adults and $4.50 per hour for minors. This age discrimination is no longer continued. The minimum wage was increased to $5.40 in October 1998, to $5.65 in April 1999, to $5.90 in October 1999 and to $7.00 in September 2005. Further details as to minimum wage are available at www.hre.gov.ab.ca/cps/rde/xchg/hre/hs.xsl/998.html.

Employers are not entitled to make deductions from wages for damage to property; nor are deductions for cash shortages allowed if individuals other than the employee have access to the cash. (See section 12 of the Code). Employers are required to notify employees of any change in pay rate before the start of a pay period, giving employees the opportunity to refuse to work for any lower rate and to demand and collect the old pay rate if not so notified. The Code also requires employers to provide employees with a detailed statement each pay period, detailing hours of work (regular and overtime), earnings paid, and deductions made. Employment records must be retained for at least three years.

Hours of Work and Overtime

Alberta’s Employment Standards Code protects employees from working excessive hours without appropriate compensation. Overtime is generally payable for hours in excess of 8 hours in one day and 44 hours in a week. The employer is obligated to pay a premium for overtime (1-1/2 times the normal rate of pay), unless time off in lieu of overtime is taken in accordance with a written overtime agreement between the employer and employee. Overtime hours can be banked for a period of 3 months, but any banked time not taken within that period must be paid out at time-and-a-half. Note that the Employment Standards Regulation has modified this entitlement for employees working in various sectors, including trucking industry, the nursery industry, oil well servicing industry, ambulance industry, and so on. Other employees do not receive overtime entitlement at all, such as employees engaged in supervisory or managerial capacities. See www.hre.gov.ab.ca/cps/rde/xchg/hre/hs.xsl/1470.html.

Unless there is an accident, emergency, or urgent work is necessary, employees are to work no more than 12 hours in a day. A rest period of 30 minutes is required for every shift exceeding 5 hours in length. The statute also requires a minimum period free from work; 1 day of rest per week is to be given, but these days off can be accumulated and taken consecutively, so long as at least 4 days off are taken after 24 consecutive workdays. For greater detail, see www.hre.gov.ab.ca/cps/rde/xchg/hre/hs.xsl/1031.html

Vacation and Holiday Entitlements

The Employment Standards Code requires that a paid vacation of at least 2 weeks must be given after a year of employment. In the alternative, the employer can pay the employee a sum equal to at least 4 percent of the gross annual wages earned. This vacation entitlement increases to 3 weeks with vacation pay equal to at least 6 percent of the wages earned after 6 years of continuous employment. See www.hre.gov.ab.ca/cps/rde/xchg/hre/hs.xsl/1471.html.

The provincial legislation provides for 9 paid statutory holidays: New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving, Remembrance Day, and Christmas Day. (The employer can also name any additional day as a holiday.) Only employees who have worked for an employer 30 days in the 12 months preceding the holiday are entitled to general holidays and general holiday pay. The employee then receives a regular day’s pay if the holiday falls on a regular workday and the employee is not required to work. If required to work, the employee is entitled to regular pay plus time-and-a-half. Part-time employees are also entitled to holiday pay if the holiday falls on one of their regularly scheduled workdays and they do work. If the holiday is not a normal day of work and the employee does work, pay at time-and-a-half is required. (www.hre.gov.ab.ca/cps/rde/xchg/hre/hs.xsl/1472.html)

Maternity and Parental Benefits

To be eligible for these benefits under the Employment Standards Code, the employee must have been continuously employed by the employer for at least 12 months. Mothers are entitled to 15 weeks’ maternity leave (without pay). They may take an additional 37 weeks of parental leave, but the total maternity and parental leave is not to exceed 52 weeks. Fathers and adoptive parents are also eligible for 37 weeks of unpaid job-protected parental leave, but the total amount of parental leave for any one birth or adoption that can be taken by two employees is not to exceed 37 weeks. The Code requires the employee to stipulate the length of leave intended and give 4 weeks’ notice of the their intent to commence leave; once on leave, they must give the employer 4 weeks’ notice of any intent to change the length of the leave. The employer is required to reinstate the employee or provide alternative comparable work at the same level of pay when the employee resumes employment at the conclusion of the leave. The Code prohibits employers from requiring that a pregnant employee take a leave of absence, unless it can be shown that she is unable to perform an essential function of her job. Employers are also prohibited from dismissing, suspending, laying off or demoting an employee who is pregnant or has applied for maternity or parental leave. (www.hre.gov.ab.ca/cps/rde/xchg/hre/hs.xsl/1473.html)

Termination

As under common law, the Code recognizes that an employer can terminate the employment of an employee by providing notice or pay in lieu of notice or a combination of the two. Where the Code and common law differ is in the calculation of the amount of notice. The Code does not consider the nature of the employment, but only its length, when determining adequate notice. It requires an employer to give 1 week’s notice to an employee who has worked more than 3 months but less than 2 years for the employer. As service length increases, so does notice/pay. See (www.hre.gov.ab.ca/cps/rde/xchg/hre/hs.xsl/1474.html)

An employee likewise is required to provide the employer notice of his intention to terminate employment: at least 1 week if employed from 3 months to 2 years; 2 weeks if employed for 2 years or more. The Code sets out several situations where notice is not required, such as when the employee is being fired for just cause or when the employment was seasonal and the season has been completed. The employee is not required to give notice where the employee leaves in response to a reduction in wage rate or to dangerous working conditions. In such situations, the employee is reacting to a serious breach of the contract by the employer; the employee can treat the contract as terminated by this breach.

Employment of Minors and of Persons with Disabilities

Regulations made pursuant to the Code currently allow adolescents (12 to 15 years of age) to work in Alberta within certain restrictions. Parental consent is generally required, and no work is allowed between 9 PM and 6 AM. Hours of work are limited to 2 hours per day on school days for adolescents age 12, 13 and 14 years. Otherwise, such adolescents can work up to 8 hours per day. The School Act imposes the statutory requirement that children stay in school until reaching a certain age, currently 16 years. There are some exceptions to this rule. (www.hre.gov.ab.ca/cps/rde/xchg/hre/hs.xsl/1476.html)

Similarly, young persons aged 15 to 17 years can work alone until 9 p.m. in a retail business selling food and beverages, in a gasoline station or in a motel or hotel, but must be accompanied by an adult after 9 p.m. Young persons working in these types of businesses may not work between midnight and 6 a.m. (www.hre.gov.ab.ca/cps/rde/xchg/hre/hs.xsl/1478.html)

The amount of “show-up pay” differs for adolescents. Generally, employees (including those under 18 years of age) are entitled to at least 3 hours’ pay if they show up for a shift and then are employed for less than 3 hours. With adolescents, if they show up for a shift on a school day and are employed for less than 2 hours, they are to receive 2 hours’ pay.

The Director of Employment Standards may issue a permit which enables employees who have disabilities to work for an employer for less than minimum wage, but only if this is a satisfactory arrangement between the employer and employee. (www.hre.gov.ab.ca/cps/rde/xchg/hre/hs.xsl/1690.html)

Bereavement Leave and Sick Leave

Unlike the Canada Labour Code which provides for 3 days’ bereavement leave with pay following the death of a member of one’s immediate family, Alberta has no legislated bereavement leave. Similarly, there is no guarantee of sick leave provided for in the Employment Standards Code. It is up to the employer whether to grant such leave and decide if it is with or without pay. Benefit packages are also provided at the discretion of the employer.

Complaints

Employees may file their written complaints with Employment Standards at any time while employed or within six months after their employment is terminated. The Employment Standards officer may dismiss the complaint if it is frivolous, vexatious or unsubstantiated, but this determination may be appealed. The officer is to attempt to mediate a settlement, but if no agreement is reached and the officer determines that earnings are due to the employee, the officer may order payment to be made. On the other hand, if the officer determines that the employee was improperly terminated or laid off (because of garnishment of wages or because the employee requested anything to which he or she was entitled under the Code, and so on), the matter is to be referred to the Director of Employment Standards. The director is authorized to order reinstatement, compensation or both. See www.hre.gov.ab.ca/cps/rde/xchg/hre/hs.xsl/1697.html

Recovery Provisions

The orders made by Employment Standards officers and by the director are generally subject to appeal. Nonetheless, these orders may be filed with the Clerk of the Court of Queen’s Bench and enforced as an order of the court. If the employer is a corporation, the directors are personally liable for any unpaid wages earned during a period not exceeding 6 months. Collection is enhanced by third-party demands, which enable the Director of Employment Standards to direct third parties who owe money to the employer to remit those sums to the director instead. These monies can then be paid out to employees to compensate them for unpaid earnings. Collection is also enhanced by the creation of a deemed trust which gives the employees collectively a prior claim to $7500 of the employer’s assets.

Issue Estoppel

If an employee wishes to file a complaint with Employment Standards, he or she should consider consulting a lawyer first. If he or she applies for benefits under the Employment Standards Code, this application for minimal benefits may foreclose his or her ability to later sue for more significant damages in Court. The determination of an issue by an Employment Standards officer may cause a court to conclude that the matter is res judicata—that the issue is already settled.

Note, however, that issue estoppel is a discretionary remedy. If a party can show that great injustice would be caused by the use of issue estoppel, the court may prefer to allow the party to proceed with litigating the claim. See the Danyluk case under Cases below, in which the Supreme Court of Canada wrestled with whether it would be just to estop an action for an employee’s claim to $300 000 in commissions.

Other Issues

The Employment Standards Code does not benefit every worker. Self-employed persons do not fall within the jurisdiction of the Code. Certain benefits are not even mentioned in the Code and must be negotiated with the employer. The Code does not deal with bereavement leave; it is up to the employer whether to grant such leave and decide if it is with or without pay. Similarly, there is no sick leave stipulated. The employer need only pay for hours worked. Benefit packages are also provided at the discretion of the employer. It is up to the employee, therefore, to become sophisticated and protect his or her interests when negotiating his employment contract with the employer.






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