How about that?
The Conservative government in Alberta has followed the Ontario lead by publishing Bad Employers on a government website, employers who have had judgements filed in court against them for violating employment standards laws. I’ve been publishing the Ontario Sunshine List of bad employers for some time. Indeed, the Alberta model is more slick than the Ontario model, allowing viewers to search employers.
Like the Ontario model, the list only includes those deadbeat employers who have been given lots of opportunities to pay up, yet refused, requiring the government to go through the hassle of filing orders in the court. Albertan employers can get themselves off the list by paying the outstanding amount. The current list includes 3670 orders! And remember, an employer only makes it onto this list if an employee (more likely an ex-employee) dares to file a complaint, an investigation is conducted and the employer is found in violation, the employer doesn’t appeal, and the employer refuses to pay. See the process here. For every violation that makes it onto this list, there are hundreds of others that do not. Still believe that employment standards regimes are an effective method of protecting workers?
Are you surprised that a Conservative government would spearhead this naming and shaming approach to employment regulation?
In fact, a disclosure model like this is perfectly consistent with traditional neo-classical economic theory. It injects relevant information into the labour market that otherwise would be too costly for employees and job searchers to obtain on their own, and which market forces alone will not produce. Information about whether an employer lacks the decency or capacity to comply with even minimum employment standards is relevant to the choices made in the labour market. Neoclassicalists will tell you that an employee would presumably demand higher compensation to offset the risk of non-compliance by a high-risk employer such as those on the sunshine list. But they can’t do that if they are unaware that the employer is at high-risk of noncompliance. The labour market suffers from substantial information asymmetries, to use economic jargon. By naming deadbeat employers, the state is facilitating more efficient labour markets, while also creating incentives for employers to comply with the law. Therefore, if you believe all that stuff neoclassicalists claim about the efficiency of markets, then you should be fully supportive of laws that inject relevant information into those markets that otherwise would remain hidden. Disclosure is justified as market-correcting. Right?
Is there a compelling argument against publicly naming and shaming law-breaking employers?
I’ve taken this idea further in my scholarly writing. In a paper I have coming out shortly in the Osgoode Hall Law Journal called “A Model of Responsive Workplace Law” (an earlier draft that I presented at Cambridge University last fall is available here), I argued that employers on these lists should also forfeit certain legal rights made available to responsible, law-abiding companies, including labour law rights. Since these employers demonstrate a lack of respect for even the state’s minimal employment standards, they are at high risk of mistreating their employees. The state’s focus should be on ensuring these employees are fully protected from future abuses. Greater numbers of unannounced inspections should be targeted at these employers, with escalating fines. And these workers should be supported in their effort to obtain help through collective bargaining if they so choose.
We know empirically that the best way to ensure compliance with employment standards laws is through collective bargaining. Unions enforce laws very well on behalf of employees. We also know empirically (through surveys) that workers’ demand for collective bargaining goes way up when they feel disrespected by the employers. And, as my executive HRM students often tell me, workers should be entitled to join unions in response to mistreatment, and indeed, employers who mistreat their workers should expect to be met with a union organizing campaign. They say in HRM, “you get the union you deserve”. What they mean is that it is rational for workers to look to outside professional assistance in the form of a union when their employer lacks the decency to respect basic employee entitlements.
A Model of Responsive Workplace Law
My proposal is that employers who make the list for persistent non-compliance with employment standards be subject to fewer legal rights to interfere with their employees’ attempts to unionize. Under our current provincial labour laws, all employers are granted extensive legal rights to resist unionization efforts, even deadbeat bad employers, including: the right to campaign against collective bargaining, including through ‘captive audience meetings’, the right to exclude union organizers from anywhere on employer property, and the right to insist on a representation ballot, regardless of the level of support demonstrated by the union in the form of documentary evidence. Why do deadbeat, irresponsible, law-breaking employers have these rights? Have they earned them through responsible behaviour? Shouldn’t the state support the efforts of employees of law-breaking employers to try and improve their situation through collective bargaining, rather than arm these irresponsible employers with an arsenal of legal entitlements to block access to collective bargaining?
My proposal is that once an employer makes the list of law-breaking employers, they forfeit the ‘privilege’ enjoyed by more responsible employers to campaign against unionization (employers in the Federal sector already must remain neutral in unionization campaigns), they have to grant union organizers access to non-working areas to convene a meeting (already the law in Britain, and a common remedy ordered by Canadian labour boards when employers violate laws), they need to provide unions with means of contacting employees outside of the workplace (already the law in Britain and the U.S.), and union certification becomes possible through means of a ‘card-check’ rather than the necessity of a ballot (already the law in several Canadian jurisdictions, and in the Ontario construction sector). They would also be subject to a more accessible model of first contract arbitration if the employee do choose unionization.
This is known as a dual stream regulatory model that treats responsible employers differently than irresponsible employers. It requires employers to ‘earn’ the legal right to participate in their employees’ decisions about whether to support collective bargaining by demonstrating respect for employment laws.
Do you think a model like this would encourage greater compliance with employment standards, while also facilitating greater unionization of low-road employers?
Do you support Alberta’s movement towards naming and shaming deadbeat employers?