Script 274 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script explains the following topics:
- Who is a farm worker
- Public holidays
- Vacation pay
- Complaints against an employer
- Workers’ compensation
- Employment Insurance
- Canada Pension Plan disability benefits
- Sexual harassment and discrimination at work
The Employment Standards Act is the provincial law that protects workers who are not in unions. The Act sets the minimum wages that workers, including farm workers, must be paid. For information about farm worker wages, refer to script 273, called “Farm Workers' Wages”. The Act also sets the rules for working conditions. You can see the Act at www.bclaws.ca.
For farm workers, there are no rules about meal breaks, split shifts, hours of work and overtime, or shift-change notices. But rules for maternity, family and other leaves, and rules if an employer fires or lays off an employee, are the same as rules for other employees.
Who is a farm worker?
A farm worker is a person who works in a farming, ranching, orchard, or agricultural operation. If you are hired to help grow or pick crops, cultivate land, or raise animals, you are a farm worker. You are also a farm worker if you clean, size, grade, box, or package fruits, vegetables, or other crops. But you are not a farm worker if you process food products, breed pets, work in forestry, aquaculture, or in a retail nursery, or work as a landscape gardener.
Do farm workers get statutory (public) holidays?
No, farm workers do not get statutory holiday pay or time off with pay for statutory holidays – the 9 days in the year that most workers get off with pay.
Do farm workers get vacation pay?
Yes. If you're paid by the piece, the piece rate includes 4% vacation pay – unless you are picking daffodils: in that case, the piece rate does not include vacation pay so you get an extra 4% on your pay cheque.
If you’re paid by the hour, and you work at least 5 days in a year for the same employer, you get vacation pay of 4% of total yearly earnings. Employers can add 4% of earnings to each pay cheque (if you approve in writing) or pay you a lump-sum when you go on vacation or when your job ends. After one year of continuous employment with the same employer, you also get 2 weeks’ vacation. After 5 years of continuous employment with the same employer, you get vacation pay of 6% of total yearly earnings and 3 weeks’ vacation.
For more on the Employment Standards Act, go to the Employment Standards Branch website at www.labour.gov.bc.ca/esb/welcome.htm. Click the link called “Agriculture”, for fact sheets on farm workers and farm labour contractors. The fact sheets come in Punjabi, French, and Spanish, as well as English. You can also call the Agricultural Compliance Hotline at 604.513.4611.
If you have a complaint with your employer
If your employer does not follow the rules in the Employment Standards Act, you can complain to the BC Employment Standards Branch (the Branch). There’s no charge to file a complaint. But first, talk to your employer and try to solve the problem. If you can’t solve the problem with your employer, talk to the Branch right away.
You can file a complaint with the Branch in any of the following ways:
- fill out the online complaint form at www.labour.gov.bc.ca/esb/forms/esb_comp.htm.
- print the complaint form from the Branch website, fill it out, and then mail or fax it, or drop it off at the Branch office nearest you.
- fill out the form at the Branch office nearest you. A list of Branch offices is at www.labour.gov.bc.ca/esb/contact/branch.htm. You can also request the form by calling the Employment Standards Information Line at 1.800.663.3316 or 250.612.4100 in the Prince George area.
You can tell the Branch you do not want your employer to know that you complained. But normally, the Branch will not be able to keep that information from the employer. It will come out during the investigation.
Is there a time limit for filing a complaint?
Yes – 6 months. When the 6 months starts to count depends on whether you are still an employee.
If you are still working for the employer, you have 6 months from when the problem occurred to file a complaint. Because the Branch can go back only 6 months from when you file, if you delay in filing, you risk losing what you may have been entitled to.
If you are no longer working for the employer, you have only 6 months from your last day of employment to file a complaint with the Branch. The Branch can then recover wages owing from the last 6 months you worked for the employer.
If you miss the 6-month time limit, the Branch may still accept your complaint – if you have a good reason for filing late. You must be able to show that you have tried to get the employer to pay, and that the employer knows that you feel you are owed money.
If you miss the 6-month time limit for filing with the Branch, and it does not accept your late complaint, you may be able to sue in court – but only for unpaid wages and severance pay. You cannot sue in court for vacation pay or statutory holiday pay – unless they were in your employment contract. But there are also time limits for going to court – you should see a lawyer in this case.
Workers' Compensation, now called WorkSafe BC, pays workers who are hurt on the job or get sick because of something that happened at work. Employers, including farmers and farm labour contractors, must pay into the plan for all their employees.
If you're hurt on the job, or get sick because of your job, you should immediately:
- report your injury or illness to your employer or someone in charge
- tell your employer and your doctor (if you need a doctor) that you will be claiming Workers’ Compensation
Your employer has to send a report to the WorkSafe BC to say you’ve been hurt on the job or you’ve gotten sick on the job because of your work. If your employer disappears or won't file a report immediately, call the WorkSafe BC to report the accident or illness. The number is 1.888.621.7233 Monday to Friday, 8:30 am to 4:30 pm. After hours, call 1.866.922.4357. Don't rely on your employer or doctor to do this.
WorkSafe BC also has rules on occupational health and safety. For more information, refer to script 285, called “Workers’ Compensation” and visit the Board’s website at www.worksafebc.com.
You may be able to get employment insurance payments if you can’t find work or if you are sick or pregnant. You pay for employment insurance with money deducted from your pay cheque.
Farm workers often have trouble getting employment insurance benefits because they may not work enough hours in a year to be eligible. The number of hours you need to make a claim changes, depending on where you live.
Keep your own, up-to-date pay records – they will help if your employer hasn’t kept good records. When you leave each job, ask your employer for your “Record of Employment”, also known as a “separation slip”. You can apply for employment insurance even if you don't have all your employment records from all your employers. Refer to script 282, called “Applying for Employment Insurance Benefits”, for more information. The Canada Employment Centre may be able to help you if you can’t get your Record of Employment.
Canada Pension Plan disability benefits
If you paid into the Canada Pension Plan and you develop a severe and long-term disability that prevents you from working, the plan pays you and your dependent children a monthly pension. You can get these benefits until you are 65. Normally, you must have contributed to the Canada Pension Plan for 4 of the past 6 years, but there are many exceptions and you may qualify even if you haven’t done this. Call Social Development Canada at 1.800.277.9914 for more information on Canada Pension Plan disability benefits. Or visit its website at www.hrsdc.gc.ca and search for “pensions.”
Sexual harassment and discrimination at work
All workers have the right to work free from sexual harassment. Sexual harassment means any unwelcome sexual behavior that affects your working conditions. And all workers have the right to be treated fairly and not be discriminated against. If you have a complaint about sexual harassment or discrimination, you can call the BC Human Rights Tribunal at 604.775.2000 in the lower mainland or 1.888.440.8844 elsewhere in BC. Or check its website at www.bchrt.bc.ca. Also, refer to script 270, called “Protection Against Job Discrimination”, and script 271, called “Sexual harassment”.
You can appeal most government decisions. There are usually time limits for appeals. Get information about appeals from the government agency whose decision you want to appeal. In the lower mainland and some other communities, you can get help from law clinics run by law students.
For more information
See the fact sheet on the BC Government Employment Standards Branch website at www.labour.gov.bc.ca/esb/facshts/farm_worker.htm. It’s available in English, Punjabi, French, and Spanish. Or phone the Branch at 1.800.663.3316, or 250.612.4100 in the Prince George area. You can also find the location of the nearest Branch office at www.labour.gov.bc.ca/esb/contact/branch.htm.
[updated March 2011]
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