Employment Standards Enforcement Research Articles

“Vulnerable Workers” and Third Way Governance: Shifting Subjects of Regulation in Ontario’s Employment Standard Enforcement Regime

This article traces the definition and treatment of “vulnerable workers” within the province of Ontario’s regulation of employment standards over a fourteen-year period. An examination of the government’s discourse and its enforcement and legislative history reveals significant shifts and inconsistencies between the government’s claims and its enforcement practices. These shifts and inconsistencies are understood within a political economic analysis of “Third Way” employment policies, competing liberal ideologies, shifting political-economic conditions and institutional legacies. The analysis contributes to a cross-national literature exploring the inadequacies of employment standards enforcement in liberal market economies while at the same time identifying opportunities for change within the different “varieties of liberalism” exhibited within Third Way regimes.

Digging Into Deterrence: An Examination of Deterrence-Based Theories and Evidence in Employment Standards Enforcement

In a bid to curb employer non-compliance with wage and hour regulation, policy-makers across many different jurisdictions are seeking to deliver greater doses of deterrence. This trend stems from a series of common assumptions. In particular, it is often assumed that introducing stiffer sanctions, such as criminal penalties for wage theft, will automatically amplify the relevant deterrence effects. This article seeks to unpack these assumptions to better understand: a) how deterrence is conceptualized and understood in the context of wage underpayment; and b) which tools or approaches are likely to be most powerful in enhancing deterrence and promoting compliance. Drawing on recent developments in Australia, the article argues that alternatives to enforcement litigation – such as voluntary agreements or undertakings – may hold critical, albeit under-appreciated, deterrence value. This analysis also reveals that the perceived risk of detection, the speediness of the relevant sanction and the publicity it ultimately generates may all serve to heighten deterrence in ways that encourage and entrench employer compliance with wage and hour laws. Deterrence, Enforcement, Compliance, Employment, Labour, Regulation

Who to Inspect? Using Employee Complaint Data to Inform Workplace Inspections in Ontario

In Ontario, as in many other jurisdictions, employment standards enforcement includes reactively investigating employee complaints and, to a lesser extent, proactively inspecting workplaces. Analyses of administrative data from Ontario’s Ministry of Labour (MOL) show that the use of complaint data to inform workplace inspections is quite limited. Strict adherence to the MOL’s procedures for workplace inspections is not conducive to the investigation of some of the most common empirical complaints. Accordingly, we argue for more strategic enforcement by making greater use of complaint data to guide workplace inspections triggered by complaints and for the increased use of penalties in these inspections.

Dealing with ‘vulnerable workers’ in precarious employment: Front-line constraints and strategies in employment standards enforcement

Individual worker complaints continue to be the core foundation of employment standards enforcement in many Western jurisdictions, including the Canadian province of Ontario. In the contemporary labour market context where segments of the labour force may be disproportionately impacted by rights violations, and employment relationships are more diverse and often more tenuous than previously, the continued reliance on individual claims suggests a need to better understand the challenges associated with the investigation and resolution of claims involving ‘vulnerable workers’ in precarious employment situations. Using interviews with front-line Ontario employment standards officers (ESOs), this article examines the extent to which certain worker characteristics and employment situations perceived by officers as ‘vulnerable’ are identified by officers as significant constraints or barriers to investigation processes and outcomes, and documents whether and how officers address these constraints and barriers. The analysis also identifies the perceived influence of policy, resource and legislative requirements in shaping how officers deal with the more difficult and challenging cases, while also considering the extent to which the officers’ actions are understood by them as discretionary and guided by their particular orientations or concerns. In so doing, this article reveals challenges to the resolution of claims in precarious employment situations, the very place where employment standards are often most needed.

Enforcing Employment Standards for Temporary Migrant Agricultural Workers in Ontario, Canada: Exposing Underexplored Layers of Vulnerability

Over 50,000 migrant agricultural workers are employed in Canada each year, almost half of whom are destined for the Province of Ontario. These workers are among the most vulnerable in the country and therefore most in need of labour and employment law protection. One important source of employment rights in Ontario is the Employment Standards Act (ESA), which establishes basic minimum entitlements in areas such as wages, working time, and vacations and leaves. Drawing on an analysis of the Ontario Ministry of Labour’s (MOL’s) Employment Standards Information System (ESIS), a previously untapped administrative data source containing information on all of Ontario’s employment standards (ES) enforcement activities and their outcomes, this article investigates the enforcement of ES among migrant agricultural workers. After offering a few methodological caveats, the analysis unfolds in three parts beginning, in Part I, by setting the stage with a discussion of the layers of vulnerability that combine to construct migrant agricultural workers as an extreme case. Against this backdrop, Part II describes agricultural workers’ limited entitlements under the ESA and the Act’s complaint-based enforcement regime, which produces, for workers in general, a gap between rights on the books and in practice. Part III then looks more specifically at ES enforcement among agricultural workers, focusing, where possible, on the situation of those that are migrants and illustrating how a complaint-based enforcement regime and an under resourced and poorly targeted inspectorate is ill-suited to the realization of rights among this group.

The Employment Standards Enforcement Gap and the Overtime Pay Exemption in Ontario

Employment Standards (es) legislation sets minimum terms and conditions of employment in areas such as wages, working time, vacations and leaves, and termination and severance. es legislation is designed to provide minimum workplace protections, particularly for those with little bargaining power in the labour market. In practice, however, es legislation includes ways in which legislated standards may be avoided, including through exemptions that exclude specified employee groups, fully or partially, from legislative coverage. With a focus on the Ontario Employment Standards Act, this article develops a case study of exemptions to the overtime pay provision of the act and regulations and examines in closer detail three specific areas in which exemptions apply. Through this study of the overtime pay exemption, the system of exemptions is presented as a contradictory approach to the regulation of es that, in effect, reduces es coverage, contributes to the avoidance of key legislated standards, and undermines the goal of providing protection for workers in precarious jobs.
 
 La Loi sur les normes d’emploi fixe des conditions minimales d’emploi dans des domaines tels que les salaires, la durée du travail, les vacances et les congés, ainsi que les licenciements et les indemnités de départ. Cette loi vise à fournir une protection minimale sur le lieu de travail, en particulier pour ceux qui ont un faible pouvoir de négociation sur le marché du travail. Cependant, dans la pratique, la Loi sur les normes d’emploi comprend des moyens pour éviter les normes législatives, notamment par le biais d’exemptions excluant totalement ou partiellement certains groupes d’employés de la couverture législative. En mettant l’accent sur la Loi sur les normes d’emploi de l’Ontario, cet article élabore une étude de cas sur les exemptions à la disposition de la loi et de ses règlements sur la rémunération des heures supplémentaires et examine plus en détail trois domaines spécifiques dans lesquels les exemptions s’appliquent. Dans cette étude sur l’exemption des heures supplémentaires, le système d’exemptions est présenté comme une approche contradictoire de la réglementation de la Loi sur les normes d’emploi qui, en réalité, réduit sa couverture, contribue à éviter les normes clés définies par la loi et sape l’objectif de protection des travailleurs qui occupent des emplois précaires.

Carrying Little Sticks: Is There a ‘Deterrence Gap’ in Employment Standards Enforcement in Ontario, Canada?

This article assesses whether a deterrence gap exists in the enforcement of the Ontario Employment Standards Act (ESA), which sets minimum conditions of employment in areas such as minimum wage, overtime pay and leaves. Drawing on a unique administrative data set, the article measures the use of deterrence in Ontario’s ESA enforcement regime against the role of deterrence within two influential models of enforcement: responsive regulation and strategic enforcement. The article finds that the use of deterrence is below its prescribed role in either model of enforcement. We conclude that there is a deterrence gap in Ontario.

Using tickets in employment standards inspections: Deterrence as effective enforcement in Ontario, Canada?

AbstractIt is widely agreed that there is a crisis in labour/employment standards enforcement. A key issue is the role of deterrence measures that penalise violations. Employment standards enforcement in Ontario, like in most jurisdictions, is based mainly on a compliance framework promoting voluntary resolution of complaints and, if that fails, ordering restitution. Deterrence measures that penalise violations are rarely invoked. However, the Ontario government has recently increased the role of proactive inspections and tickets, a low-level deterrence measure which imposes fines of CAD295 plus victim surcharges. In examining the effectiveness of the use of tickets in inspections, we begin by looking at this development in the broader context of employment standards enforcement and its historical trajectory. Then, using administrative data from the Ministry of Labour, we examine when and why tickets are issued in the course of workplace inspections. After demonstrating that even when ticketable violations are detected, tickets are issued only rarely, we explore factors associated with an increased likelihood of an inspector issuing a ticket. Finally, we consider how the overall deterrent effect of workplace inspections is influenced by the use or non-use of deterrence tools.

Carrying Little Sticks: Is There a Deterrence Gapp in Employment Standards Enforcement in Ontario, Canada?

Carrying Little Sticks: Is There a Deterrence Gapp in Employment Standards Enforcement in Ontario, Canada?

Enforcement of Ontario'sEmployment Standards Act:The Impact of Reforms

This article examines the impact of recent reforms on the enforcement of the Ontario Employment Standards Act (2000). It analyzes changes to complaints processing before and after the implementation of the Open for Business Act (2010), part of which aimed to streamline workplace regulation. Drawing on a previously untapped source of information on employment standards enforcement, the Ministry of Labour's Employment Standards Information System, we argue that reforms to enforcement under the Open for Business Act appear to have eroded both the accessibility of the complaints system and the remedies available to complainants. By way of conclusion, the article outlines measures that hold the potential to strengthen the complaints system in Ontario.

The compliance model of employment standards enforcement: an evidence‐based assessment of its efficacy in instances of wage theft

AbstractThis article critically assesses the compliance model of employment standards enforcement through a study of monetary employment standards violations in Ontario, Canada. The findings suggest that, in contexts where changes to the organisation of work deepen insecurity for employees, models of enforcement that emphasise compliance over deterrence are unlikely to effectively prevent or remedy employment standards violations.

Making or Administering Law and Policy? Discretion and Judgment in Employment Standards Enforcement in Ontario

Abstract The purpose of this paper is to advance an approach to analyzing decision-making by front line public officials. The notion of discretion in front line decision-making has been examined widely in the law and society literature. However, it has often failed to capture the different kinds and levels of decisions that enforcement officials make. Taking an interdisciplinary approach that draws on political, sociological, and legal analysis, we propose a new conceptual framework, one that draws a sharper distinction between discretion and judgment and teases out distinct levels in the scope and depth of decision-making. We then use this framework to create a conceptual map of the decision-making process of front-line officials charged with enforcing the Employment Standards Act (ESA) of Ontario, demonstrating that a deeper, more precise analysis of discretion and judgment can contribute to a richer understanding of front line decision-making and its social, political, and legal implications.

Challenging new governance: Evaluating new approaches to employment standards enforcement in common law jurisdictions

A mounting crisis in employment standards (ES) enforcement is prompting the adoption of new instruments and mechanisms among governments in common law jurisdictions aiming to improve workplace regulation. This shift, evident across all stages of the enforcement process, indicates the increasing influence of regulatory new governance. Using reforms in four jurisdictions as illustrative examples, this article raises serious cautions around the emergence of regulatory new governance in employment standards enforcement. The central argument of the article is that new modes of regulation that fail to account adequately for the power dynamics of the employment relationship risk entrenching processes of regulatory degradation. In light of this potential, the article outlines four principles for more effective ES regulation that aim to balance aspects of traditional regulatory models with a selective application of more promising elements of regulatory new governance, in particular participatory arrangements that involve workers in enforcement processes.

Confronting the employment standards enforcement gap: Exploring the potential for union engagement with employment law in Ontario, Canada

Employment standards (ES) are legislated standards that set minimum terms and conditions of employment in areas such as wages, working time, vacations and leaves, and termination and severance. In Canada, the majority of workers rely on ES for basic regulatory protection; however, a significant ‘enforcement gap’ exists. In the province of Ontario, this enforcement gap has been exacerbated in recent years due to the deregulation of ES through inadequate funding, workplace restructuring, legislative reforms that place greater emphasis on individualized complaints processes and voluntary compliance, and a formal separation of unions from ES enforcement. The implications of these developments are that, increasingly, those in precarious jobs, many of whom lack union representation, are left with insufficient regulatory protection from employer non-compliance, further heightening their insecurity. Taking the province of Ontario as our focus, in this article we critically examine alternative proposals for ES enforcement, placing our attention on those that enhance the involvement of unions in addressing ES violations. Through this analysis, we suggest that augmenting unions’ supportive roles in ES enforcement holds the potential to enhance unions’ regulatory function and offers a possible means to support the ongoing efforts of other workers’ organizations to improve employer compliance with ES.

Mandate, Discretion, and Professionalisation in an Employment Standards Enforcement Agency: An Antipodean Experience

In recent years, there has been a resurgence of scholarly interest in the operation and effect of labour inspectorates around the world. This article aims to contribute to this mounting comparative and socio‐legal literature by considering the emergence of an active and high‐profile enforcement agency inAustralia—theFairWorkOmbudsman (FWO). Drawing on the experiences of inspectors and senior managers at theFWO, we examine the structure and mandate of the agency, as well as the discretion afforded to, and the professionalisation of, individual inspectors. While some have sought to draw a distinction between a rule‐bound, specialised approach characteristic of certain Anglo‐American countries and the so‐called Franco‐Iberian model, which places a greater emphasis on flexibility and pragmatism, we found that theFWOdoes not necessarily fit neatly within this dichotomy. Rather, we observe that as theFWOis a new institution, its mode of operation is in the process of evolution. At present it is pluralistic, in the sense that it exhibits a hierarchical, procedural approach in a drive to address concerns of consistency and accountability, while at the same time allowing, and sometimes encouraging, individuals to be experimental and adaptive.

‘Modernising’ Employment Standards? Administrative Efficiency and the Production of the Illegitimate Claimant in Ontario, Canada

AbstractIn October 2010, the provincial government of Ontario, Canada enacted the Open for Business Act (OBA). A central component of the OBA is its provisions aiming to streamline the enforcement of Ontario’s Employment Standards Act (ESA). The OBA’s changes to the ESA are an attempt to manage a crisis of employment standards (ES) enforcement, arising from decades of ineffective regulation, by entrenching an individualised enforcement model. The Act aims to streamline enforcement by screening people assumed to be lacking definitive proof of violations out of the complaints process. The OBA therefore produces a new category of ‘illegitimate claimants’ and attributes administrative backlogs to these people. Instead of improving the protection of workers, the OBA embeds new racialised and gendered modes of exclusion in the ES enforcement process.