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Bill 148: On Enforcement of ESA Compliance and a Missed Opportunity?

June 10, 2017

The much anticipated Bill 148, Fair Workplaces, Better Jobs Act, 2017 was introduced last week.  It has received a mix of praise and derision from labour groups and the business community.  Some say it doesn’t go far enough to help vulnerable workers, others say it goes too far.  The Liberals would say this mixed reaction demonstrates that the Bill is balanced.

This post focuses on the Bill’s treatment of enforcement, and in particular ESA enforcement.  The employment standards model is notorious for high levels of non-compliance; while many employers comply, many, many others do not, either because of ignorance of the law or a

Ontario's Minister of Labour Kevin Flynn (Photo:  TVO)

Ontario’s Minister of Labour Kevin Flynn (Photo: TVO)

cynical decision to violate it knowing the odds of being caught are small and the penalties weak (“efficient breach”).  As I discuss in Chapter 3 of my book The Law of Work, “law is what law does”, so it matters little how Bill 148 changes substantive provisions if those provisions will continue to be ignored by employers.   We need strong enforcement to ensure that ‘good employers’ who comply are not put at a competitive disadvantage by ‘bad employers’ who do not comply.

How does the new Bill seek to redress this problem of non-compliance?  I have a few comments on this, including a reference to an old paper I wrote about how to incentivize ESA compliance that could easily fit into Bill 148.

 Repealing ESA Section 96.1

Firstly, Bill 148 repeals the wrong-headed requirement, introduced by the same Liberal party in the so-called Open For Business Act of 2010, that employees  confront the employer directly about alleged ESA violations, and describe what steps they took to do so as well as the employer’s response before an ESA complaint would be processed.  That silly law appears in Section 96.1 of the ESA.

I lambasted that law back when it was first introduced in this post called “When Did Discouraging Workers to File ESA Complaints Become Public Policy in Ontario”.   To my mind, the cynical purpose of the law was to discourage new complaints in order to help the Ministry of Labour tackle a huge backlog of ESA complaints.  It seemed obvious to me in 2010 that many workers would just not bother filing a complaint if they first had to go back to their ex-employer and directly confront them about non-compliance.  And indeed the CWR experts concluded that is precisely what happened (see page  104-106).  It’s as if the government forgot that the ESA is built on the foundation of employee vulnerability.  Thankfully, Bill 148 repeals Section 96.1.

Publicizing Law-Breaking Employers

The current ESA permits the government to publish on the Internet the names of individuals and business convicted of ESA violations (Section 138.1).  You can find lists of the convicted here.   I used to do a monthly “Bad Employers” post on my blog until the government started to fall way behind on keeping the list up to date.  Bill 148 extends this right of negative publicity to people/businesses that are “deemed” to have contravened the ESA, which means basically anyone found to have violated the ESA by an employment standards officer if the ESO’s order is not appealed to the OLRB and anyone found to have violated the ESA by the OLRB.  While public shaming can have some impact, don’t expect this revision to have much impact on overall compliance.

Increased Fines

The CWR experts recommended increased levels of fines for violations of the ESA.  Bill 148 does not directly address that issue since the fine levels will be set out in the Regulations at some later point, but the government has indicated it will be increasing fines from $250, $500, and $1000 to $250, $700, and $1500.

More Inspections and Officers

The government has indicated its intention to hire up to 175 new ESOs (students, brush off your c.v.s!) to increase the number of inspections and to process complaints quicker.  However, even then, the government expects to inspect only a small fraction of Ontario’s workplaces.

A Missed Opportunity to link ESA and Labour Relations Act?

I want to conclude with an observation about a missed opportunity to create a strong incentive for employers at high risk of non-compliance to comply with ESA obligations.  It relates to the decision of the government to re-introduce card-check union certification for workers in industries where there is especially high risk of ESA non-compliance (i.e. where workers are particularly vulnerable) and where union organizing is difficult, including building services, home care and community services, and temporary help agencies (see Section 15.3 of Bill 148).  The experts did not recommend this change.  This proposal will mean these three sectors, plus construction, are governed by card-check certification and all other sectors by mandatory unionization votes.

Unions win organizing campaigns much more often under card-check certification than under mandatory vote models.  Ontario used the card-check model for 50 odd years until the anti-union Conservative government of Mike Harris introduced mandatory votes in the mid-1990s.

In a 2012 paper called “A Model of Responsive Workplace Law” published in the Osgoode Hall Law Journal, I made a relatively straightforward, if perhaps controversial, proposal to break down the traditional boundaries between employment standards and collective bargaining law regimes in pursuit of greater ESA compliance, especially for vulnerable workers.

The proposal was essentially this:  The law requires a strong incentive that makes employers believe it is in their economic interest to comply with statutory requirements.   Higher fines help, provided there is a reasonable risk of detection and punishment (hence the need for more proactive enforcement), but only help so much.  Some employers will still not get the message and many law-breaking employers will still never be detected.  We need additional methods to reorient the thinking of those employers who are inclined either to not learn the law or to violate it because the economic benefits of non-compliance are perceived to outweigh the costs of compliance (what we call “efficient breach” of the law).

One way to smack recalcitrant employers into paying attention to employment-related statutes is to “inject a risk virus into their bloodstream”, as I like to say, in order to provoke risk management responses consistent with public policy.

What are low road employers most afraid of?  Unionization.   Therefore, I argued that non-compliance with ESA obligations (or other important legal obligations) should be associated with a higher risk of unionization.  Just watch how seriously employers take ESA compliance if they knew non-compliance could increase the chances of their employers unionizing!

In particular, I argued that labour boards should be given the power to order as a remedy for violation of the ESA (and the Labour Relations Act) that employees be permitted to unionize using the “card-check certification” instead of the mandatory ballot model that requires two steps, both a collection of a near majority of union members cards, plus an additional win in a state-conducted certification vote.  Details could be worked out, such as whether this remedy would be available only in the case of multiple offences, for example.  Note by the way that the CWR experts did not recommend a return to card-check at all, but rather argued that mandatory votes should be maintained but the penalties for interference with the right to unionize increased.  We have long permitted labour boards to order remedies for unfair labour practices in the form of remedial union certification and other orders intended to make unionization easier, including union access to the workplace and granting the union the right to decide when a second certification vote will be held.  My proposal would extend this thinking to violations of the employment standards act and to card-check certification.

That proposal was met with indifference, curiosity, sometimes great enthusiasm (see this article by NYU Law professor Cindy Estlund on the merits of what she calls the “Doorey Proposal”), and sometimes anger.   Some union friends called it the “unionization as punishment” model, or expressed concern that it would detract from the push for card-check across the board (a fair point I think).  Other union organizers told me they thought the model could be very useful to them.  Employer side lawyers told me that most employers would hate it because they want votes in every case, although law-abiding employers and unionized employers would probably not get too worked up about it. They agreed it would get employers’ attention.  At least the proposal created discussion!

Anyways, I raise this 2012 paper now because it seems to me that Bill 148 adopts the spirit of my proposal if not the content.  Both the Bill and my paper recognize that the law can aid particularly  vulnerable workers by applying card-check certification rather than the more challenging mandatory vote model.  Bill 148 will normalize a system in which different types of workers unionize according to different models of unionization.   Workers in particularly vulnerable industries have access to card-check, as do construction employees.  I argued in my proposal that workers employed by employers who fail to comply with basic minimum standards in the ESA are similarly vulnerable and should have access to card-check certification as well.

If you want employers to take ESA compliance seriously, just watch how quickly they learn the law if they think that non-compliance will increase the chances of unionization!  Employers will default towards compliance just to be safe in order to ensure their employees remain within the mandatory union vote model.  Moreover, my proposal creates an incentive for unions to educate and advocate ESA compliance on behalf of nonunion employees.

It’s not too late, Liberals, to add my little tweak to Bill 148:  in addition to introducing card-check certification in the three new industries, allow card-based certification to be ordered as remedy in cases of ESA or LRA violations to both incentivize compliance and also provide the same access to collective bargaining to employees of law-breaking employers as Bill 148 is now providing to employees in building services, home care and community services, and temporary help agencies.

Issues for Discussion

1.  Do you believe the changes in Bill 148 will dramatically improve compliance with ESA rules?

2.  What other changes would you propose, if any?

3.  What do you think of my proposal to empower labour boards to order card-check certification as a remedy when employer violate basic employment standards?  Is it a dumb idea?  Would it cause employers to take the ESA more seriously?

 

 

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3 Responses to Bill 148: On Enforcement of ESA Compliance and a Missed Opportunity?

  1. Christopher Davidson Reply

    June 6, 2017 at 6:09 pm

    I have previously voiced the concern that providing an easier path to unionization when an employer violates certain laws sends a signal that unions are a punishment for bad employers. I accept that employers generally think of unions as such and, indeed, that this seems to be a central tenet of human resources. However, law has a “signalling” function: that is, law is most effective when it conveys to people that certain actions are wrong and people internalize that normative judgment. Anti-smoking regulations, for example, have arguably made smoking much less socially acceptable. If we use the law to send the signal that unionization is a punishment, than we risk conceding the position that the rights to organize, bargain and strike are fundamental human rights that should be fully enjoyed by all workers. (Indeed, if we take seriously the idea that these are human rights, then Canadian governments have a duty to actively promote the exercise of these rights by the greatest number of people. The unionization as punishment proposal lets the government off the hook in this respect.)
    To increase compliance with the ESA, I would have liked to see the introduction of “double damages.” In some US laws, employees who are cheated out of employment standards minimums are allowed to recover double the amount they are owed. For example, if an employer fails to pay $400 in that is due to an employee under the employment standards legislation, the employee is entitled to receive $800 in damages if he or she must take legal action to be paid. The availability of ‘double damages’ (1) increases the price of non-compliance to employers and (2) better compensates employees who have not received their statutory entitlements and (3) promotes better access to justice (to a limited degree). One may argue that fines for violations serve the purpose of increasing the costs of non-compliance. Okay. Point taken, but is an employee really fairly compensated by receiving only the pay he or she should have received in the first place? The employee is owed that $400; she should get it without having to go through the time, mental stress and (probably) financial cost of fighting for it. Awarding interest on unpaid amounts doesn’t really make-up for that extra effort and aggravation the employee has to go through to get a minimum entitlement. Furthermore, the rate of interest awarded is quite low: it’s not the same rate of interest you’ve been paying on your credit card balance because you couldn’t pay-off the balance because you weren’t paid what you are owed. Also, if you have to hire a lawyer of paralegal to help you get that minimum entitlement, you will be left, in the end, with much less that the hypothetical $400 that was your right. If, however, you can afford to pay for $400 for legal help but still have your original entitlement ‘in hand at the end of the day,’ then you have better access to justice.

    • Doorey Reply

      June 8, 2017 at 7:50 pm

      Thanks Chris, nice to hear from you. Calling a card-check remedy “punishment for bad employers” is one (particularly negative) way to spin the idea. The same spin could be used to describe remedial union certification, which the new law will make automatic upon the committing of an unfair labour practice, and various other labour board remedies that have long been ordered in the case of unfair labour practices, such as the right of organizers to enter the premises to speak to workers, the right of organizers to have an office at the workplace, the right of unions to choose when a second vote is held, etc. We have long remedied bad employer behaviour by giving unions new opportunities to reach vulnerable workers. My proposal isn’t much different, it just takes that idea and applies it to a different statute (ESA) rather than just the LRA, and takes it one step further by changing the method of calculating majority support rather than just giving unions greater access to employees. The big question for me is would if effect employer behaviour and improve ESA compliance. I think it would. Anyways, doesn’t matter, government didn’t consider it. I like the double-damages idea, though I have doubts it will make a big difference on compliance levels. Cheers, David

  2. Dan McGarry Reply

    June 16, 2017 at 4:44 pm

    David,
    Rather than debate or discuss the merits of the changes to employment legislation introduced by the Fair Workplaces, Better Jobs Act, I would like to address some of the areas that were either not addressed or some proposals in the Act that would benefit from greater clarification.

    Employment Standards.
    •Revising Ontario Regulation 286.01 which still allows for discrimination against those over the age of 65 in regards to benefits. Surely with changes in life expectancies, workforce demographics and the near elimination of employer pension plans the existing protections should reflect new realities.
    •Including a provision in the ESA similar to that in the CLC prohibiting the dismissal of long term employees without cause. Perhaps 12 months is too short but surely after 5 years employees should have some sort of protection?
    •Regarding the calculation of Public Holiday Pay, has ‘regular daily wage’ been clearly defined?
    •Regarding the requirement in the Overtime Pay provisions to pay a worker who holds more than one position overtime pay at the rate for the position they are working, does this not create an almost impossible record keeping requirement?
    •Rather than introducing additional rules regarding ‘temporary workers’, why not just introduce mandatory licensing for staffing services to ensure that they are operating in compliance with existing laws?
    •One of my personal ‘windmills’. All contracts/terms of employment for elected politicians and political appointees should specify that they are to receive only statutory notice and/or severance. Surely that would provide an impetus to improving those provisions for all workers in the province?

    Workplace Safety & Insurance Act
    •Regardless of the decision in Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al. changes should be made to eliminate the discriminatory practices allowed by the Act against those over the age of 65.
    •Regulation 1101 (First Aid) should be removed from the WSIB and assigned to the Ministry of Labour, so as to finally ensure that this Regulation is being enforced.

    Ontario Human Rights Code
    •Revising the Code to eliminate age based exemptions. For instance rather than prohibiting a claim by those under the age of 18, anyone legally allowed to work under the Occupational Health & Safety Act should also be protected against age discrimination.
    •Adding appearance to the list of protected grounds.

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