The nature of employment is changing. Precarious jobs are becoming more commonplace with fewer workers belong to unions and more workers earning low wages. Simultaneously, workplaces are being transformed through the growth of contracting-out, franchising, and extended supply chains. These changes leave employment standards, which set minimum terms and conditions of employment in areas such as wages, working time, vacations and leaves, and termination and severance of employment, as the sole source of protection for workers in precarious jobs.
Closing the Enforcement Gap: Improving Protections for Workers in Precarious Jobs offers a comprehensive analysis of the enforcement of employment standards in Ontario, Canada in comparative context. Adopting mixed-methods, including qualitative research involving in-depth interviews with workers, community advocates, and enforcement officials, archival research excavating decades of ministerial records, and analysis of a previously untapped source of administrative data collected by Ontario’s Ministry of Labour (MOL), the book reveals and traces the roots of a deepening ‘enforcement gap’ that pervades nearly all aspects of the regime, demonstrating that the province’s Employment Standards Act (ESA) fails too many workers who rely on the floor of minimum conditions it was devised to provide.
Using a critical and feminist political economy framework, authors interrogate aspects of the employment standards enforcement system in Ontario. Analysis of the employment standards complaints system under the ESA shows that making individual complaints entails challenges and barriers for many employees. Only a small minority of employees who lodge complaints do so while still employed in the job in which they experienced violations, fearing reprisal from employers. Closing the Enforcement Gap chronicles the MOL’s attempts to manage the deluge of complaints through an emphasis on new public management and regulatory new governance-inspired reforms that attempt to limit the number of complaints that reach the MOL in the first place. However, its coauthors argue that when there is little risk to employers for getting caught (as the book shows), the pressure on the individual complaints system will simply continue to grow.
When workers do launch complaints, wage recovery is one of their key concerns. Here, the book shows that complainants with large entitlement amounts and those from small firms are less likely to be paid voluntarily, and when Orders to Pay Wages are issued, the probability of recovery is low. This challenge – wage recovery – is a fundamental weakness of the system. Making the complaints system more accessible, or increasing awareness about workplace rights, mean nothing if complainants wind up with little more than symbolic victories.
Moving beyond complaint-based, reactive enforcement, more proactive strategies include workplace inspections. Starting in 2004, the MOL directed more resources to these inspections. However, as Closing the Enforcement Gap demonstrates, if violations are thought to occur as a result of employers’ lack of knowledge, rather than as deliberate cost cutting strategies, their effectiveness is limited. Similarly, the book shows the limited use of meaningful deterrence measures by front line inspectors and managers and identifies shared rationales for liming the use of deterrence grounded in current MOL policy and the longer-standing institutional emphasis on individual complaints and compliance over inspections and deterrence.
There is nevertheless nothing inevitable about the enforcement gap in Ontario or for that matter elsewhere. Through contributions from leading employment standards enforcement scholars in the US, the UK, and Australia, as well as Quebec, the book also surveys innovative enforcement initiatives that are emerging in a variety of jurisdictions and sets out a bold vision for strengthening employment standards enforcement. Recommendations’ made in the book include:
- allowing third parties to file complaints on behalf of workers,
- eliminating performance measures based on quantity for Employment Standards Officers,
- expanding liability for payment of monies to employees to address fissuring,
- moving towards proactive inspections with limited advanced notice, and
- actively using the deterrence tools provided for in the ESA and using them in more strategic ways.
In addition, Closing the Enforcement Gap explores the potential for non-state actors to participate in employment standards enforcement in substantive and meaningful ways. Measures such as these would provide stronger labour protections for the increasing numbers of workers, particularly those already vulnerable, engaged in precarious jobs.
The book is coauthored by Leah F. Vosko, Guliz Akkaymak, Rebecca Casey, Shelley Condratto, John Grundy, Alan Hall, Alice Hoe, Kiran Mirchandani, Andrea M. Noack, Urvashi Soni-Sinha, Mercedes Steedman, Mark P. Thomas, and Eric M. Tucker. International/Québec contributors are Nick Clark, Dalia Gesualdi-Fecteau, Tess Hardy, John Howe, Guylaine Vallée, and David Weil.
The research conducted for this book was funded by a Social Sciences and Humanities Research Council of Canada Partnership Grant. The resulting research partnership involves a large network of organizations: Cavalluzzo Hayes Shilton McIntyre & Cornish LLP, Community Advocacy and Legal Centre, Human Rights Legal Support Centre, Laurentian University, Ryerson University, University of Toronto/OISE, University of Windsor, the Law Commission of Ontario, Legal Assistance of Windsor, the Ontario Ministry of Labour, Ontario Public Sector Employees Union, Association of Management, Administrative and Professional Crown Employees of Ontario, Parkdale Community Legal Services, Sudbury Community Legal Clinic, Toronto Workers’ Health and Safety Legal Clinic, Workers’ Action Centre of Windsor, Workers’ Action Centre of Toronto, and York University.
To learn more about the Closing the Gap project and its other publications, please visit the website.
Leah F. Vosko, York University, serves as the academic lead and Mary Gellatly, Parkdale Community Legal Services, serves as the community lead. Heather Steel is Research Project Administration for Closing the Employment Standards Enforcement Gap at York University.