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Bill 68: When Did Discouraging Workers to File ESA Complaints Become Public Policy in Ontario?

I’m back from summer break, and I’m having deja vu.  Have you heard about this new Ontario Bill 68?  Here’s a story from the Toronto Star describing it.

Those of us who lived through the exciting days of the Mike Harris “common sense revolution” got used to government double-speak in the names of legislation.  Who can forget the “Tenant Protection Act”, which gutted tenant’s rights?  In labour law, the main legislation that targeted labour rights was called, “An Act to restore balance and stability to labour relations and to promote economic prosperity and to make consequential changes to statutes concerning labour relations” (see Minister of Labour Elizabeth Witmer’s introduction of that law here)  The Tories also thought that making employment standards negotiable and flexible was a good way to promote business.  So they introduced laws that allowed employees to “bargain” away their rights to overtime pay, for example.

Now the Liberals are borrowing from the book of Harris by pushing through an omni-bus bill called “The Act to Promote Ontario as Open for Business by Amending Certain Acts and Regulations”, or the Open for Business Act, for short.  Oh brother, that sort of language usually means trouble for workers.  The changes include revisions to the Employment Standards Act that the government says will “would encourage employers and employees to settle disputes at an early stage, avoiding unnecessary costs for both parties…and allowing employment standards officers to focus on the current backlog of claims”.

Under Section 96.1 (see page 130 of the Bill, linked above), a complaint by an employee will not be processed by the Ministry until the employee has first demanded compliance with the ESA directly from the employer.  In other words, the legislation creates new procedural loopholes for workers to jump through to recover their entitlements under the ESA.  It forces employees to beg their employers to comply with the law before the government will get involved in enforcing the legislation.

How will this “encourage early settlements”?

It’s not clear to me.   Keep this in mind:  the vast majority of ESA complaints are filed by workers who have already quit or been fired by the employer (ex-employees).  The Arthurs commission pegged the number at 93% of all complaints in the Federal sector filed by ex-employees, and Professor Mark Thomas found that 90% of complaints under the Ontario ESA are filed by ex-employees (see Regulating Flexibility, p. 104).   The reason is that non-union workers, sensibly, are concerned about challenging their existing employers directly, so they wait until they are no longer dependent on the employer before they complain.  So we are mostly talking about complaints filed by ex-employees.

Now, I suspect a lot of these workers already do ask the employer to comply with the legislation before they go through the hassle of filing a complaint, but I don’t have any stats on that (nor do I suspect the Liberals have any reliable evidence on this point). Most of these workers will not be aware of the new requirement to first beg the employer to comply with the law before filing a complaint.  So they will file a complaint without making any reference to their attempt to get the employer to comply, and the complaint will be rejected on this ground.  Some workers might not understand what is required of them, or get frustrated, and just give up.  That would certainly reduce the number of cases the Ministry is dealing with, but wouldn’t encourage early settlements.  It would just allow law-breaking employers to avoid liability.  I suspect the Liberals are content with that outcome, because they are mostly concerned with dealing with the case backlog, not with ensuring compliance with the ESA.

Alternatively, some complainants will go through the silly exercise of  refiling the form this time including a description of how they asked the employer to comply and nothing happened, or if they had not previously asked, they will call their ex-employer and ask them to comply. The ex-employer may or not comply.  If the employer doesn’t comply, the  complainant can refile the complaint, this time indicating to the Minister that they asked their ex-employer to comply and the employer ignored their request, told them to “go to hell”,  or disputed the claim.  Then the usual process would begin and an ESO would be assigned.  Again, how does introducing this extra procedural hurdle–for the employee to challenge the employer directly before filing a complaint–encourage early settlement or advance the purpose of the legislation, which is to protect vulnerable workers by ensuring them a basic level of workplace standards?

Under the existing model, an employee files a complaint and it goes to the employer.  If upon seeing a valid complaint, the employer admits it made a mistake, a decent employer will just pay up, with little or no involvement by the state.  Bad employers won’t pay, and the state then needs to interject.  All of that remains true under the new model.  I anticipate that the only effect of this change will be discourage some employees from pursuing their ESA entitlements because they fear directly challenging an employer, or because they don’t understand the procedural requirements.

That’s a good outcome if the goal is to reduce the number of complaints under the ESA, but a stupid outcome if the goal is to improve compliance with the legislation.

Do you think forcing employees to ask their employers to comply with their legal obligations as a precondition of processing an ESA complaint is good public policy?  What outcome will it produce, if any?

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4 Responses to Bill 68: When Did Discouraging Workers to File ESA Complaints Become Public Policy in Ontario?

  1. Yosie Saint-Cyr Reply

    August 17, 2010 at 10:16 am

    Maybe getting employees to know their rights and fight for them!

  2. Chris Davidson Reply

    August 17, 2010 at 12:58 pm

    This legislative change seems to be a bit of psychological warfare. The requirement to go to the employer first reinforces the social status of the employer: your employer is your master and you must beg you bread from him. The fits better symbolically with the idea that the worker is actually entitled to something and that the employer must comply. The proposed model more closely aligns the government with the employer and sets up what to many workers will appear to be a power dynamic in which they have to beg their employer for a settlement, then go to the employer’s friend, the government, for assistance in persuading the employer that the worker should get something (though not necessarily everthign that is due).
    Might this system provide an opportunity for employers to offer a settlement below the worker’s entitlement before the government gets involved? The employee is likely to accept as the system is clearly against the employer. The dispute would be settled, but not justly.

  3. Dennis Buchanan Reply

    August 23, 2010 at 6:00 pm

    Well, I’m inclined to disagree with the characterization of “begging” – employees who know their rights well enough to assert them likely also know that woe be tot he employer who turns around and fires the employee for it.

    And some employers genuinely don’t know their obligations, and so you might hope that they would turn around in the face of a demand…but it’s likely to be pretty rare that such an employer actually takes the employee’s word for it, and in any event putting the onus on employees to know and enforce their rights, as distinct from instead requiring the the employer to know and abide by its obligations, is bad public policy.

    But it’s worse than all that: Suppose I’m a sophisticated employer. I know my obligations. I know the ESA. I’ve had good legal advice. With this bill in effect, my legal adviser tells me rightly that I don’t have to worry about liability for breaching the ESA until after a demand. So I don’t worry about minimum wage, overtime, public holiday pay, etc., until after the employee has asked for it. If my employees don’t know or lack the assertiveness to call me on it, I can get away with it indefinitely, *with no risk*. (As opposed to the current state of the law, where, if I do that, I might end up with an Employment Standards Officer closely scrutinizing my records and ordering me to pay sizable lump sums, plus administrative surcharges, to each of my employees, with no opportunity to curb the investigation at the door.)

    So no, I don’t believe that this will scare more employees off of enforcing their rights. But it may well put a *lot* more employees in the situation of needing to stand up to their employer.

    By the way, Chris: I can’t imagine that any release of rights in exchange for a settlement less than the employee’s entitlements would be enforceable without, at a minimum, ILA. (That said, even unenforceable contractual terms are frequently voluntarily respected.)

  4. Chris Davidson Reply

    August 24, 2010 at 11:36 am

    Dennis, of course, you are right that the settlement would not be legally enforceable, but in practical terms, I believe this is a probable outcome. Under the current system at least the ministry will look at the matter and determine the correct entitlement.
    I would also note that even the current system places too much empahsis on employees reporting problems. I am not terribly familiar with all the ESA enforcement mechanisms, but aren’t employers already safe from inspection unless someone complains to the ministry first? Certainly, I would support going in the opposite direction of Bill 68: workplaces should be randomly audited for ESA compliance. This could be as simple as sending out anonymous questionaires to employees, asking key questions about breaks, overtime, rates of pay, etc.

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