Poor compliance with employment standards legislation is a huge and systemic problem in both Canada and the United States. As my friend and mentor Harry Arthurs likes to say: “Law is what Law Does“. In other words, an employment standards law means little if employers can ignore it with impunity. Yet that is what often happens in Canada. The “law on the books” may have little resemblance to practices on the workplace floor.
Arthurs found in his report Fairness at Work that “25% of all federal employers were not in compliance with most obligations under [the Federal employment standards’ law], and that 75% of these employers were not in compliance with at least one provision [of the legislation].” Since these numbers were based on employer “self-reporting”, Arthurs noted, they were likely to actually understate non-compliance levels.
Employment standards are there to protect the most vulnerable of workers. These are usually nonunion workers, since we know empirically that unions are very good at ensuring their members receive at least their employment standards. Nonunion employees lack an independent advocate in most cases, and often lack information about employment standards and how to enforce them. They depend upon the employer to act responsibly and comply with the law. Many employers do. Sadly, many do not.
Transparency and Employment Regulation
The Liberal government in Ontario has in recent years promoted transparency as one tool in encouraging greater compliance with the ESA. I’m a fan of transparency in employment law, as some of my publications would indicate. The Ontario government publishes all convictions under the ESA on its website, which is a nice touch. It has the right to do this because the Liberals recently added Section 138.1 to the ESA. That section says this:
138.1 (1) If a person, including an individual, is convicted of an offence under this Act, the Director may publish or otherwise make available to the general public the name of the person, a description of the offence, the date of the conviction and the person’s sentence.
Internet publication
(2) Authority to publish under subsection (1) includes authority to publish on the Internet
The Bad Employer List
There is now a growing list of irresponsible, bad Ontario employers on the list of the convicted. To help spread the government’s word about these bad employers, I am starting a new monthly feature: The Bad Employer Sunshine List. I will add the list to my Pages on the top of the Blog. Of course, employers convicted of ESA violations are only a very small subset of employers who violate statutes and employment contracts–many employees never file complaints, and of the meritorious complaints that are filed, many would be resolved long before the state would obtain a conviction. But this is a start towards shining a spotlight on irresponsible employers.
Is your employer on the list? Are you thinking of applying to work for one of these bad employers? The information provided here may be relevant to your decisions.
In this first edition of the Bad Employer Sunshine List I will link only to the latest list (from August 2011). For an archive list of previous months, go here. From now on, I will post new Bad Employers as the lists are published. Bad employers remain published for one year from their conviction.
August 2011 Bad Employers
Some Notable Bad Employers this month:
East Side Marios; Swiss Chalet/Harveys; The Dragon Bistro; The Horseshoe Tavern (NOO!); Petsmart; Old Mill Cadillac; Golf Town; Howard Johnson; Kitchen Stuff; Wild Wing; Golden Griddle; Coffee Time; E.B. Box Company; Addison Chevrolet Buick; Pizza Nova