The degree of change to legislation impacting workplaces in Alberta has been staggering since 2017. The previous NDP government made a number of significant changes to the Employment Standards Code. Subsequently, the UCP government has made further changes which are aimed at streamlining rules and remedying some of the practical challenges for employers that the previous changes represented. It is critical that employers remain apprised of these changes and that their policies, procedures and practices are up to date.
Changes that became effective August 15, 2020:
Group termination notice
Now there is just one set of rules for all terminations of 50 or more employees that take place in a four-week period. The distinction between group terminations of 50, 100, or 300 employees has been eliminated. Employers do not have to give group termination notice to unions, but still has to give the Ministry of Labour four weeks’ notice, or a reasonable amount of time, when termination more than 50 employees at a single location. If the employer cannot do so, they must provide written notice “as soon as reasonable in the circumstances.” Previously, there were different notice requirements depending on the number of workers being terminated.
If the temporary layoff is unrelated to COVID-19, the maximum duration is 90 days total in a 120-day period (increased from 60 days within a 120-day period) without job loss. If the temporary layoff is related to COVID-19, separate rules allow employers to lay off employees for 180 consecutive days before it is considered a termination.
Variance and exemption application rules
The rules are now more flexible making it simpler and faster for employers to get approval or renewal of a variance or exemption. The Minister and Director of Labour have increased authority to grant variances and exceptions.
Changes that became effective November 1, 2020:
Holiday pay calculation
It is now simpler to calculate general holiday pay. Previously, the “average daily wage” calculation for paying general holiday pay is 5% of the employees wages, general holiday pay and vacation earned in the four weeks immediately preceding the general holiday. Under the new rules employees still get general holiday pay, but the amount may change as average daily wage will no longer include vacation pay and general holiday pay. The employee’s average daily wage will be total wages averaged over the number of days they worked in the:
- Four weeks immediately before the general holiday, OR
- Four weeks ending on the last day of the pay period that occurred just before the general holiday.
Deductions from pay without consent
Employers no longer need written permission from the employee to deduct an overpayment due to a payroll error or for vacation pay paid in advance. Employers will still have to inform employees that overpayments will be deducted from their pay checks. The deduction must be made within six months of the overpayment. It is important to note that consent in writing is still required for all other types of non-statutory deductions.
Final pay on Termination
Previously, employees had to receive their final pay within three or 10 consecutive days after the last day of employment depending on whether termination notice was provided. This time frame has been extended. Upon termination under the new rules, employees must receive their final pay not later than:
- 10 consecutive days after the end of the pay period in which termination occurred, or
- 31 consecutive days after the last day of employment.
Averaging arrangement provide some relief for employers with respect to overtime, as they allow an employee’s worked time to be averaged over a specific period of time rather than calculated weekly. Employers no longer need employee consent to start or change an averaging arrangement. Employers are, however, required to give an employee two weeks’ written notice.
The length of averaging periods has been extended to up to 52 weeks. Currently, the maximum length of the averaging period is up to 12 weeks. These arrangements no longer need to have an end date and there is more flexibility to alter shifts, but employees must get 8 hours of rest between shifts.
Employers must provide:
- At least one 30-minute break (paid or unpaid) for shifts between 5 and 10 hours in duration;
- At least two 30-minute breaks (paid or unpaid) for shifts 10 hours or longer
Currently, an employee is entitled to at least 30 minutes of rest (paid or unpaid) after 5 consecutive hours of work. Employers and employees will also have greater flexibility to determine when or how breaks are taken, provided the minimum requirements are met.
Confirmation that employees continue to accumulate vacation time while they are on a job-protected leave, as opposed to the previous ESC provisions which allow an employer to reduce an employee’s vacation and vacation pay when the employee is absent from work.
The list of jobs that 13- and 14-year-olds can do without a permit has been expanded and now includes light janitorial work in offices, coaching, and tutoring. If the youth is working with someone 18 or older and has their parents’ consent, they can also take up certain jobs in the food services industry.
Employers and unions can now agree to override certain Employment Standards Code provisions relating to maximum daily hours of work, shift changes, temporary layoffs, hours of work averaging and days of rest under a collective agreement. Previously, a collective agreement could not offend the minimum standards imposed by the Employment Standards Code.
Employers will still have to pay a penalty for breaking rules but the amount may be adjusted on a case-by-case basis, and employers have more time to submit the payment.
The most recent set of changes are largely employer-friendly and warrant consideration in how employers change how they manage their workforce. Swainson Miki Peskett is here to help and can work with employers to implement new policies and procedures that facilitate their ability to take advantage of these changes.
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