5 New Obligations on NB Employers Effective September 1, 2014 in NB Employment Standards Act
September 30, 2014
By Dominique Fontaine, at McInnes Cooper
Effective September 1, 2014 the NB government implemented five important changes to the NB Employment Standards Act – the minimum standards law that applies to most employees in NB – imposing additional obligations on NB employers:
- Electronic Pay Stubs. Employers can provide a pay statement to employees electronically – but only if the employees have, at the place of employment, confidential access to this electronic statement. Practically, this means that employers that wish to provide employees with electronic pay stubs must also give those employees access to a computer – on which they can confidentially retrieve their pay stubs.
- New Leaves of Absence. The changes create two new, additional leaves of absence without pay for employees who are parents:
- Critical Illness Leave. A parent of a critically ill child is entitled to a leave without pay of up to 37 weeks to provide care or support to that child if a qualified medical practitioner issues a certificate stating the child requires the care or support of one or more of her parents, and sets out the period during which the child requires that care.
- Death or Disappearance Leave. If a child has died and it is probable, considering the circumstances, that the death is a result of a crime, a parent of that child is entitled to a leave without pay of up to 37 weeks. Similarly, a parent of a child who has disappeared and it is probable, based on the circumstances, that such disappearance is the result of a crime, is entitled to the same leave.
- Personal Liability of Directors for Unpaid Wages and Vacation Pay. In certain circumstances, directors of NB employers (that is, employers with NB employees covered by the Act) are now jointly and severally liable with the corporation to an employee or former employee of the corporation for:
- up to six months of wages owing to an employee or former employee that were earned or became due and payable while the person was a director; and
- up to 12 months of vacation pay or pay in lieu of vacation owing to an employee or former employee that accrued or became due and payable while the person was a director.
There is a “due diligence” defence: a director (or former director) won’t be liable if she “exercised reasonable diligence to provide for the payments”. The NB government first introduced this new liability more than a year ago, but revisited – and revised – it as a result of feedback that included significant concerns over the lack of a defence. Read more in McInnes Cooper’s: NB Government Throws Directors of NB Employers A Life Preserver.
- Foreign Workers. An employer who recruits foreign workers for employment must now register with the Director of Employment Standards and provide specific information detailed in the Act. The registration is valid for one calendar year from the date the employer provides the information to the Director. The employer must provide the Director with an update of the information each year on or before the anniversary date of the registration. Employers who retain the services of a foreign worker to do certain things are also prohibited from taking certain actions in relation to that foreign worker, including:
- requiring her to use an immigration consultant as a condition of employment
- recovering any cost the employer incurred in recruiting the foreign worker
- taking possession or retaining property that the foreign worker is entitled to possess, including the passport or work permit
- refusing to allow the foreign worker to vacate the employer-provided accommodations or other accommodations
- threatening the employee with deportation
- Administrative Penalties. The Director of Employment Standards now has the power to impose administrative penalties if a person or employer fails to comply with a notice of non-compliance with the Act within 30 days. The potential penalty ranges from $150 to $900, depending on the number of occurrences.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Labour and Employment Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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