Employment of Resident Caretakers Requires Broad Expertise

It would be fair to say that regulation of the employment relationship is far more extensive today than, say, twenty years ago. In most instances, employers must look beyond the B.C. Employment Standards Act.

The common law of employment expands and evolves with new court decisions every day. There is also a multitude of statutes which, at least in part, regulate the employment relationship. Employers today really do need to have eyes on the back of their head.

One example of an employment relationship having many legal influences is that of resident caretakers. A resident caretaker is a person living in an apartment building who is employed in a managerial capacity. A caretaker may also be referred to as a custodian, manager, janitor, or superintendent.

Like all other employees, the employment of resident caretakers is governed by the common law. Through court decisions, judges have imposed certain terms on the employment relationship. These terms are above and beyond those contained in employment contracts and statutes. One such example is the employer’s obligation to treat the employee with civility and decency and to conduct itself in a good faith manner.

Resident caretakers may also, like all other employees, be subject to binding contractual terms. Employment contracts frequently contain terms defining the scope of the employee’s responsibilities, terms of compensation, and a severance formula.

When it comes to statutory regulation of resident caretakers, the picture becomes more complicated. First, the B.C. Employment Standards Regulation contains a definition of “resident caretaker”. This definition includes only those caretakers who are responsible for apartment buildings containing more than 8 residential suites.

The Regulation goes on to establish a special minimum wage for resident caretakers. Because of the type of duties they perform and the working hours they keep, caretakers’ minimum wages are expressed on a monthly, rather than hourly, basis. The current rates can be found at section 16 of the Regulation and on the Employment Standards Branch website (www.labour.gov.bc.ca/esb).

The Regulation also excludes resident caretakers from most of Part 4 (governing hours of work and overtime) of the Employment Standards Act. In brief, resident caretakers are excluded from all hours of work and overtime regulations except the requirement to schedule a minimum number of hours free from work each week and the protection against excessive hours of work.

The remainder of the Employment Standards Act, including the notice of termination provisions in Part 8, applies to resident caretakers.

If you thought that’s where the statutory regulation of resident caretakers ends, you’d be mistaken. Because, by definition, resident caretakers live in their employer’s rental premises, the impact of the B.C. Residential Tenancy Act must also be considered. The Residential Tenancy Act governs, generally, the relationship between landlords and tenants including the manner in which the tenancy relationship may be terminated.

It is commonly the case that the employer will want to simultaneously terminate both the employment and the tenancy of a resident caretaker. Section 48 of the Residential Tenancy Act dictates the manner in which notice of termination of the tenancy must be given to a caretaker (when the rental unit is provided for the term of the employment, the employment is ending, and the landlord intends to provide the unit to a new caretaker).

The Act obligates the landlord/employer to provide the resident caretaker with at least one month of notice of termination of the tenancy. The tenancy must not be terminated prior to the last day the caretaker is employed by the landlord and must be effective on the day before the day on which rent is payable.

If you’ve made it this far, I expect you’re beginning to understand that the employment and termination of residential caretakers is a complex matter. This is just one example of how difficult life has become for employers and how important it is for them to have access to sources of expertise on the employment relationship.

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