Employers in the tourism industry often employ seasonal employees during peak times. Though the BC Employment Standards Act (the “Act”) does not, for the most part, distinguish between seasonal and permanent employees, there are some important exceptions. Further, even when the Act applies equally to seasonal and other employees, the nature of seasonal employment, often during busy periods, may lead some employers to inadvertently overlook their legal obligations to such employees.
The key difference between seasonal and other employees as provided for in the Act is the employer’s obligations upon termination of employment. Section 63 of the Act sets out the amount of notice (or wages in lieu thereof) which employers are liable to provide upon termination of employment without cause.
However, Section 63 does not apply to some seasonal employees in specific circumstances. As outlined in Section 63 of the Act, employers are not required to provide termination notice (or wages in lieu thereof) to seasonal employees who:
- are employed for a definite term and are aware of the exact date of termination at the time they commence employment;
- are hired for specific work to be completed within a 12-month period and know at the time they are hired that their employment will end when the project is complete or by a specific date; or
- are covered by a collective agreement that specifically provides employment terms for seasonal employees.
Employers are obligated to provide termination notice (or wages in lieu thereof) under Section 63 of the Act to seasonal employees where none of these three circumstances apply. The obligations of Section 63 also apply where the employer hires an employee for the completion of specific work but then terminates that employment before the work is completed.
Also note that if the period of seasonal employment is not subject to a definite term but will terminate instead on the basis of weather or other unpredictable conditions, then the employer will be obligated to provide termination notice (or wages in lieu thereof) under Section 63 of the Act once it becomes evident that the period of employment will come to an end. Most periods of seasonal employment are between 3 and 12 months, in which case the notice obligation under Section 63 is only 1 week. As such, even when the end of a season is fairly unpredictable at the outset, it is usually not difficult to provide one week’s working notice when the season’s end is near.
Section 64 of the Act, which sets out requirements for employers upon group terminations, generally does not apply to groups of employees laid off or terminated as a result of the normal seasonal reduction, suspension or closure of a business or operation.
Regarding overtime pay, employers generally have the same obligations to seasonal employees as they do to longer-term employees. This is important to note as peak seasons may result in employees working long and sometimes unpredicted hours. Briefly, the Act provides for daily overtime to be paid at time-and-a-half after eight hours worked in a day and double-time after 12 hours worked in a day. Also note that some specific groups of seasonal workers (e.g. live-in camp leaders) may be subject to different rules regarding hours of work, overtime requirements, and minimum wages as set out in the Employment Standards Regulation.
There is generally no obligation to rehire a seasonal employee in subsequent seasons, provided the initial employment relationship has been clearly terminated. This may happen expressly, by way of an explicit termination of employment or by the expiration of the specified period of employment. Alternatively, the employment relationship may come to an end following a layoff of more than 13 weeks in any 20 week period (where a “week of layoff” means a week in which an employee earns less than 50% of the employee’s regular weekly wages, averaged over a period of 8 weeks). However, employers should make it clear to seasonal employees that there should be no expectation of continued or renewed employment in subsequent seasons. Ambiguity in this respect could lead to a claim that the employment relationship was unbroken and/or there was a reasonable expectation and corresponding obligation of subsequent re-employment.
Finally, employers should be aware that the Human Rights Code and Workers’ Compensation Act apply to seasonal employees; there is no special exemption for such employees. For example, while there may be no general obligation to rehire seasonal employees, employers may be subject to complaints of discrimination under the Human Rights Code if there is evidence that a decision to not rehire a seasonal employee was based in whole or in part on a protected ground (such as disability or race).