Improving Employment Standards Compliance: Institutional Learning and the Dual Regulatory Stream

Abstract

A reasonable starting point for improving the situation of vulnerable employees is improving compliance with the Employment Standards Act. This submission deals specifically with the question of how to do that through a set of relatively modest legal reforms. The proposed reforms would, firstly, dramatically improve information flow and knowledge of ESA standards by requiring employers to learn their legal obligations and to pass on that knowledge to their employees. Secondly, the proposal would break down the traditional division between employment law and labour law by requiring that employers earn the legal rights our present labour law model confers on all employers to resist unionization by their employees. Employers who violate the ESA should forfeit the right to proselytize against collective bargaining and to insist on a certification ballot in addition to written evidence of employee support for it. By developing a dual regulatory stream model, the proposal charts a path forward that would at once increase the incentive for nonunion employers to comply with the ESA while also elevate the probability that employees of non-compliant employers will obtain the assistance of knowledgeable and skilled worker advocates.