Management of Staff and Compliance: Part 2

Q:  I am an owner and I choose to pay the individual I have working for me directly, I do not see them as a ‘permanent employee’.  There sometimes seems to be a disconnect where an owner will engage an individual directly.

TN: Maybe an owner has a context where they can do this and here in Barbados, there is a context for this as well where we call this type of arrangement hiring an independent contractor.

Independent contractors are not employees and as an owner, I am not required to give them holiday, benefits, or deduct any statutory obligations for them.

However, an owner needs to be very careful when determining what is an independent contractor relationship and what is an employee relationship because those are the two that are identified in law.

These are measured by control; so if an owner has the majority of control – providing a place for the person to work, the tools for the person to work with, instructions on when they need to show up for work and what they need to do when they show up and how it must be done; if the owner is very prescriptive in all of the actions of this individual and if there is very little control within the individual’s grasp, and the individual is expected to provide services solely to the owner or the compensation from the owner represents an amount the employee depends on consistently for their livelihood along with other factors above, then this individual is an employee.

So, often we find the challenge at NIS is that an owner may be arguing that a housekeeper is an independent contractor. However, the owner is buying all of the products, instructing them on when to show up for work, how long they need to stay, state exactly what the individual needs to do – this person is not a contractor, they are an employee.

You may have a similar circumstance with a chef for example, NIS is more lenient in identifying a chef as a contractor because a chef would be told you need to cook for ‘x’ people and these are the times they want their meals however, the rest is left up to the chef – what time the chef comes in to prep, they often bring their own tools – there is more with this position than with a housekeeper.

SG: Owners should be aware of the difference between an employee and an independent contractor – not how they, the owner, view these two persons but rather how the laws of Barbados view these two types of individuals.

The law sets out what is viewed as an employee and if the owner ‘ticks these boxes’ that they have hired the individual to do certain things under certain terms, the law views the individual as an employee.

The NIS and Labour Office does not see a housekeeper, in the way the business of villas is set out in the Act, as an independent contractor. They work with the owner’s tools, their hours of work are dictated by the owner – this is not terms under which an independent contractor works.

The independent contractors where the owner contracts their services, no statutory deductions are deducted and paid in for them. Independent contractors bring in their own tools to work, their timing to show up for work can vary depending on what guests/owners request, they tend to have more flexibility.

Their contract is for period (set start date and set end date) and for a specific job/stint.

Q: How is this different to Barbadian homes, where they are not rental properties, and there is a housekeeper who works for the household?  Can a Barbadian have a housekeeper who works for the family for years, being given holiday – should there be a contract in place?

TN: Best practice is yes, having a contract cannot hurt. In an employment situation and in the absence of a written contract, the tribunal will consider the oral contractual arrangement. 

Recommendation is always to have some level of documentation to outline the relationship however it is not as necessary in a domestic environment.

However, it is not as rigid in a local, Barbadian home-setting because the Employment Rights Act does not extend to your domestic environment; they see villas quite differently.

Your home is your private home; a villa is a business.

Q: What should an owner ensure is in place/consider when hiring a temporary employee member for their own protection?

TN: Based on how the Employment Rights Act is structured, regardless of my status as an employee (permanent or temporary) once I have worked for a year or more continuously, the Act relates those employees to the owner/employer.  

This applies to the disciplinary process as outlined in the ERA and all the rights in the Act are to be given to the employee.

We would love to let our emotions navigate how we engage in these relationships, however, the setup of the law in Barbados is very protective of how employees are managed

So, I would always suggest that an owner follows the very prescriptive documented path when engaging with anything to do with employees. 

From the initial engagement of them from a contract perspective to documenting when changes are made to their salaries/wages, to the handling of grievances – dealing with all of this is outlined by law.

Everything in the employee relationship I would suggest to all owners to seek guidance because the law is very prescriptive as it relates to the employment relationship and while the owner may have the best of intentions and you may treat this person very well generally, the Employment Rights Tribunal’s mandate is not one that looks at the whole relationship, it is one that is very focused on procedure.  It is not based on emotion or intention; it is strictly about procedure and if the right process was followed and follow to a ‘T’.

Again, I would always implore owners to get advice and to have documentation.

Q: What is the suggested/legal amount of holiday days to be offered to permanent and temporary employees?

The law provides for the minimum benchmark which is 3 weeks once the employee has completed one (1) year of service.

Between 1 year – 5 years, 3 weeks’ vacation.

Once you have completed 5 years, you become eligible for 4 weeks’ vacation.

This is the minimum.

To not do this, is illegal.

However, an owner can do more/better.

Q: Where an owner has a temporary employee, is the owner obligated to give the employee vacation?

This depends on the period.

By law, you must complete one year of continuous service before you become eligible for vacation, even though an employer can decide to provide vacation before this eligibility period.

However, an employee starts to accrue vacation from the time that they start working, so once the employee has completed 3 months, they have accrued vacation pay (or 3 / 52) that would be due to the employee.

For example, if an owner has a temporary employee working for 5 months, while the employee may not have taken any vacation days, the employee is entitled to and should be paid their accrued vacation days (3 / 52 of 5 months) at the end of that period. So the owner must be prepared to give the employee their accrued vacation pay in addition to their wage(s).  

Similarly, you may have a temporary employee that is contracted to work for you for 2 years; from the time they have completed that first year, they are eligible for their vacation time, even though they are temporary, if completing a year of continuous employment, they are eligible for their vacation time.

Q: What is the grace period allowed if a permanent employee does not take holiday during a calendar year (can they bring their week(s) forward into the next year)?  Is an owner allowed to let them work 18, 20 months for example and not let them go off on holiday?

Holiday is typically navigated by your anniversary date.

So, when my anniversary date comes up, that is when the employee should be taking their holiday.  An employer must grant an employee the holiday due within a six month period of the holiday being due unless the employer and employee so agree in writing to defer the holiday a further period, noting the specific date that the holiday is deferred until and written notification has been sent to the Chief Labour Officer requesting to defer the holiday until a specific date and written consent has been provided by the Chief Labour Officer to do so.  

The circumstances are to be outlined explaining that the employee can take holiday ‘x’ months after their anniversary date.

Typically, something may happen in the business (as with owners who rent short-term, it may be the Winter season for example) which may prevent the employee from taking holiday on that anniversary date (blackout period).

SG: When employees are due their holiday, they need to take it. Allowing employees to continue to work without taking their time could have repercussion later for the owner as this action is illegal. The employee could make an argument that the owner did not allow them to take their holiday.  So we always advise that when employees have worked each year, and they work hard especially during the Winter season) and it is time for their holiday they need to take their time.

An owner can postpone an employee’s holiday for no more than 6 months after they become due to take their holiday (anniversary date). An owner may have bookings or their own visit to the property which may be during the time of the anniversary date.  The owner then has up to 6 months to grant the employee their holiday.  (same as above)

There is a period of 2 weeks’ notice that has to be given to the employee in cases where they refuse to go off when required to.

Q: Can an owner ask a permanent employee to work during their allotted annual holiday?

TN: No. This is illegal.

It is also illegal for an employee to suggest or to say ‘I want to work through my holiday’.

The law makes absolutely no provision for an employee to refuse holiday or for an employee to negotiate something else in place of their holiday.

The law requires the owner to give the time and for the employee to take the time.

Having an agreement in writing between the employee and employer for the employee to work during holiday does not make a difference as the act makes no provision for this to be done.

SG: No – employees cannot work through their holiday.

The employee can also say – if it gets to the level of making a complaint to NIS or the Labour Office – that they worked all of this time and the owner refused to give them time off.  

Q: As an owner, if my employee is making excuses as to why they cannot go off on holiday, what can I do to ensure they are taking their allotted vacation?

TN: The owner can serve the employee a notice in writing (if previous discussions have not worked) officially on “x” date. It must be taken no less than 2 weeks written notice.

If employees continue to refuse to take holiday, an employer should commence the disciplinary action with the employee on this infraction as the employer must demonstrate that they did all they could to comply with the law.

Q: Can I offer my permanent employee lieu days instead of paying double time for bank holidays or instead of paying them overtime?

Yes.  These terms need to be set out on inception in the statement of employment particulars (contract) or in the employee handbook or the policies set out by the employer.

The stance on lieu days must be written in the contract or referenced in the contract under the policies of the company.

Best practice for issuing lieu days to an employee is to ensure that they are taken within 2 weeks from when they are granted.

It is also becomes much easier to manage by doing it this way.

SG: Lieu days can be given to the employee instead of paying overtime or paying double time for working Bank Holidays however, it must be in the contract or included as a policy.

If how to treat overtime or paying double time is not in the contract or included in any of the policies, the owner and the employee can mutually agree on this if it is not itemised in the contract however what was agreed to verbally, should then be put in writing to the employee and signed by the employee.

It is important to record/document lieu days and anything else as agreed in writing with the employee(s).

It is always best to establish what you (the owner) want to do and how you wish for your house to be run and be managed from inception so these details can be included in the statement of employment particulars or in any policies you wish to establish.

You can even go further in addressing how lieu days should be paid in the contract – custom and practice tend to give back the hours worked in lieu, but this is up to the employer and should be set out prior to the employee working the excess time.

Q: What do I need to do as the owner for my employee when they go off on maternity leave including payment?

A female employee is entitled to maternity leave after 28 weeks of pregnancy. Not less than 12 weeks of maternity leave is given. This leave can be taken 6 weeks prior and 6 weeks after the confinement date (delivery/due date). The leave can also run for the full 12 weeks after the delivery date or any other combination agreed with the employer and employee prior to the birth of the baby. For health and safety reasons, practice is to send employees on maternity leave 2 weeks prior to the confinement date and some companies offer an extended period for maternity leave which is totally at the discretion of the company as payment will only be through the company for this extended period. NIS will only pay maternity leave for the 12 week period.

When an employee finds out that they are pregnant, their doctor will give them a document stating the expected delivery/due date. This is a confinement paper.

Once the baby has been delivered, an official confinement paper is given with the delivery date.

If during the pregnancy, the employee is put on bed rest, this would be considered sick leave and their NIS benefit will be applicable.  

Q: When an employee is injured on the job, what does this mean and what needs to happen?

SG: Unfortunately, this can happen sometimes.  Once this occurs and has been reported, a report must be generated to outline what happened (property manager to draft and submit) – get feedback/statement from the injured employee as well as any witnesses.

When the employee sends in the sick certificate as granted by their doctor to the NIS Department, the NIS Department will need to send in an injury form to the employer/owner (via the managing company BSL) so they can also generate their own report for documentation, so that the benefit can be paid to the employee. Where employees have been granted sick leave for 3 days or more as a result of an accident on the job, the employer (via the managing company BSL) must also complete a form called “Notice of Accident or Dangerous Occurrence” and submit to the Labour Department.

Q: What does it mean when an employee is declared medically unfit to work?

There may be times when an employee cannot no longer perform their duties due to some medical condition.  The employee goes to their doctor who then will provide information to the NIS department describing the condition and their findings (the owner will also get a copy).  The employee will be sent home due to permanent incapacity to work and this documentation triggers the end of the employee’s employment.

It could also be that an employee has been on extended sick leave for a long period; this could also trigger NIS to request a consultation with a doctor to determine an employee’s fitness for work.

The NIS Department will contact the employee and schedule them to sit with a Board who reviews such cases and the Board will then pass judgement on the case and if they will grant/agree with the medically unfit diagnosis.

Once the employee has been declared medically unfit, the owner will have to pay the employee any vacation that has been accrued (no notice or consultation is due) and an unemployment form is given to the employee for their NIS benefit to start.

Q: What responsibility does an owner have when an employee is called for jury duty?

SG: Once an employee has been called up for jury duty, the employee is obligated to go.

The owner, as the employer, must continue to pay the employee during this time.

For example, if the property is occupied during the time the employee is at jury duty, the employee must be paid their occupied time/rate as if they were working at the property.

Depending on how it affects the business of the villa, an owner can write a letter for the employee to be excused which can be submitted for review to see if the excuse will be granted. This request is not always granted.

Q: What responsibility does an owner have when an employee is called to represent Barbados (sports etc)?

SG: Employers are encouraged to allow employees the time away from work to attend national duty with some form of continued pay (either full or a portion) but the leave or leave with pay is not required by law.